earlier time. In the case of certified mail, the only acceptable evidence is as follows:

(1) Where the Receipt for Certified Mail identifies the post office station of mailing evidence furnished by the offeror which establishes that the business day of that station ended at an earlier time, in which case the time of mailing shall be deemed to be the last minute of the business day of that station; or

(2) An entry in ink on the Receipt for Certified Mail showing the time of mailing and the initials of the postal employee receiving the item and making the entry, with appropriate written verification of such entry from the post office station of mailing, in which case the time of mailing shall be the time shown in the entry. If the postmark on the original Receipt for Certified Mail does not show a date, the offer shall not be considered.

(e) Offerors submitting late proposals or modifications shall be notified in accordance with § 1-2.303-6 of this title, except that the notices provided for therein shall be appropriately modified to relate to the request for proposals and the proposal or modifications thereunder.

(f) The provisions of paragraphs (a) through (c) of this section are also applicable to late quotations. In the case of a request for quotations, the provision set forth in paragraph (d) of this section will be appropriately modified.

(g) Modifications of proposals (other than the normal revisions of proposals by selected offerors during the usual conduct of negotiations with such offerors) which are received in the office designated in the requests for proposals after the time specified for submission of proposals are "late modifications." Late modifications shall be subject to the rules applicable to late proposals set forth in this paragraph. However, a modification received from an otherwise successful offeror which is favorable to the Government shall be considered at any time that such modification is received. The provisions of this paragraph are also applicable to late modifications to quotations. § 2-3.509

offers.

Receipt and opening of

It is vitally important for an offeror to feel that he will be treated fairly and impartially by the Agency. Therefore, the instructions for the receipt and safeguarding of bids in § 1-2.401 of this title shall also apply to the receipt and safeguarding of proposals and quotations.

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This data furnished in response to RFP No. shall not be disclosed outside the Government or be duplicated, used, or disclosed in whole or in part for any purpose other than to evaluate the proposal: Provided, That if a contract is awarded to this offeror as a result of or in connection with the submission of such data, the Government shall have the right to duplicate, use, or disclose this data to the extent provided in the contract. This restriction does not limit the Government's right to use information contained in such data if it is obtained from another source. Contracting officers shall not refuse to consider any proposal merely because data submitted with that proposal is so marked. Data so marked shall be used only to evaluate proposals and shall not be disclosed outside the Government without the written permission of the offeror except under the conditions provided in the legend.

(b) The provisions in paragraph (a) of this section are also applicable to quotations. In the case of a request for quotations, the legend in paragraph (a) of this section shall be appropriately modified.

§ 2-3.510-2 Disclosure of information during the preaward or preacceptance period.

(a) General. After receipt of proposals or quotations, no information contained in any proposal or quotation regarding the number or identity of the offerors shall be made available to the public, or to anyone within the Government not having a legitimate interest therein, except in accordance with § 2-3.510.3.

(b) Equal consideration and information to all prospective contractors. Discussions with prospective contractors re

garding a potential procurement and the transmission of technical or other information shall be conducted only by the contracting officer, his superiors having contractual authority or others specifically authorized. Such personnel shall not furnish any information to a potential supplier which alone or together with other information may afford him an advantage over others. However, general information which would not be prejudicial to others may be furnished upon request, e.g., explanation 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 furnished in a timely manner to all to whom the solicitation has been furnished.

§ 2-3.510-3 Preward 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 30 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 § 1-3.103 of this title would suffice. In addition to stating that the proposal has been determined unacceptable, notice to the offeror shall indicate, in general terms, the basis for such determination and shall advise that, since further negotiation with him concerning this procurement is not contemplated, a revision of his proposal will not be considered. § 2-3.511

Protests against award.

Protests against awards of negotiated procurements shall be treated substantially in accordance with § 1-2.407-8 of this title.

Subpart 2-3.7-Negotiated Overhead Rates

§ 2-3.700 Scope of subpart.

This subpart sets forth the policy and procedure governing the negotiation of overhead rates for use in cost-reimbursement type contracts.

The term "negotiated final overhead rate," as used in this subpart, means a percentage of dollar factor which expresses the ratio(s) mutually agreed upon by the Government and the contractor, at the close of a regularly stated period (preferably the contractor's fiscal year), of indirect expense incurred in the period to direct labor, manufacturing cost, cost of sales, or other appropriate base of the same period. Ordinarily, such rates are used as a means of determining the amount of reimbursement for the applicable indirect costs for such completed period; in such cases, they are termed "postdetermined" overhead rates. In certain circumstances involving educational institutions, negotiated final overhead rates may be used as a means of determining the amount of reimbursement for the applicable indirect costs to be incurred during a future period of contract performance; in such cases, they are termed "predetermined" overhead rates (see § 2-3.704-2(b)).

§ 2-3.701-2 Provisional overhead rates.

The term "provisional overhead rate" as used in this subpart means a tentative overhead rate established for interim billing purposes pending negotiation of the final overhead rate.

§ 2-3.701-3 Overhead (indirect costs).

The term "overhead (indirect costs)," as used in this subpart includes, but is not limited to, the general groups of indirect expenses such as those generated in manufacturing departments, engineering departments, tooling departments, general and administrative departments and, if applicable, indirect costs accumulated by cost centers within these general groups. In the case of contractors using fund accounting systems, the term includes, but is not limited to, the general groups of expenses such as general administration and general expense, maintenance and operation of physical plant, library expenses, and use charges for building and equipment. § 2-3.702 Purpose.

The major purposes of negotiated final overhead rates are: (a) To effect uniformity of approach in cases where more than one contract or more than one Government agency is involved; (b) to

effect economy in administrative effort; and (c) to promote timely settlement of reimbursement claims. In the interest of uniformity, the contracting officer should determine from the contractor whether the majority of his Government cost-reimbursement type contracts provide for "negotiated final overhead rates" and by what means he is reimbursed on an interim basis. Overhead clauses in FAA contracts should normally be of the same type as those in the contractor's contracts with the Department of Defense if any.

§ 2-3.703 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 § 2-3.702 results or will result by the use of negotiated final overhead rates, the contracting officer will provide for settlement of overhead by audit determination.

(a) Notwithstanding the provisions of the clause of this contract entitled "Allowable Cost, Fixed Fee, and Payment," the allowable indirect costs under this contract shall be obtained by applying negotiated overhead rates to bases agreed upon by the parties, as specified below.

(b) The contractor, as soon as possible but not later than ninety (90) days after the expiration of each period specified in the schedule, shall submit to the contracting officer with a copy to the cognizant audit activity a proposed final overhead rate or rates for that period based on the contractor's actual cost experience during that period, together with supporting cost data. Negotiation of final overhead rates by the

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contractor and the contracting officer shall be undertaken as promptly as practicable after receipt of the contractor's proposal.

(c) Allowability of costs and acceptability of cost allocation methods shall be determined in accordance with Subpart 1-15.2 of the Federal Procurement Regulations as in effect on the date of this contract.

(d) The results of each negotiation shall be set forth in a modification to this contract, which shall specify (i) the agreed final rates, (ii) the bases to which the rates apply, and (iii) the periods for which the rates apply.

(e) Pending establishment of final overhead rates for any period, the contractor shall be reimbursed either at negotiated provisional rates as provided in the schedule or at billing rates acceptable to the contracting officer, subject to appropriate adjustment when the final rates for that period are established. To prevent substantial over or under payment, the provisional or billing rates may, at the request of either party, be revised by mutual agreement, either retroactively or prospectively. Any such revision of negotiated provisional rates provided in the schedule shall be set forth in a modification to this contract.

(f) Any failure by the parties to agree on any final rate or rates under this clause shall be considered a dispute concerning a question of fact for decision by the contracting officer within the meaning of the "Disputes" clause of this contract.

In the case of a cost-plus-incentive-fee contract, substitute "Allowable Cost, Incentive Fee, and Payment" for "Allowaable Cost, Fixed Fee, and Payment" in paragraph (a) of the foregoing clause. § 2-3.704-2 Contracts with educational institutions.

(a) Insert the following clause in contracts with educational institutions where postdetermined overhead rates are to be used pursuant to this subpart. The appropriate "interim payment" clause set forth in § 2-3.704-3 shall be used in conjunction with this clause.

NEGOTIATED OVERHEAD RATES
(POSTDETERMINED)

(a) Notwithstanding the provisions of the clause of this contract entitled "Allowable Cost and Payment," the allowable indirect costs under this contract shall be obtained by applying negotiated overhead rates to bases agreed upon by the parties, as specified below.

(b) The contractor, as soon as possible but not later than six (6) months after the expiration of each period specified in the schedule shall submit to the contracting officer with a copy to the cognizant audit activity, a proposed final overhead rate or rates for that period based on the contrac

tor's actual cost experience during that period, together with supporting cost data. Negotiation of final overhead rates by the contractor and the contracting officer shall be undertaken as promptly as practicable after receipt of the contractor's proposal.

(c) Allowability of costs and acceptability of cost allocation methods shall be determined in accordance with Subpart 1-15.3 of the Federal Procurement Regulations as in effect on the date of this contract.

(d) The results of each negotiation shall be set forth in a modification to this contract, which shall specify (1) the agreed final rates, (ii) the bases to which the rates apply, and (iii) the periods for which the rates apply.

(e) Pending establishment of final overhead rates for any period, the contractor shall be reimbursed either at negotiated provisional rates as provided in the schedule or at biling rates acceptable to the contracting officer, subject to appropriate adjustment when the final rates for that period are established. To prevent substantial over or under payment, the provisional or billing rates may, at the request of either party, be revised by mutual agreement, either retroactively or prospectively. Any such revision of negotiated provisional rates provided in the schedule shall be set forth in a modification to this contract.

(f) Any failure by the parties to agree on any final rate or rates under this clause shall be considered a dispute concerning a question of fact for decision by the contracting officer within the meaning of the "Disputes" clause of this contract.

(b) Provision may be made in cost reimbursement type research and development contracts with educational institutions for payment of reimbursable indirect costs on the basis of predetermined overhead rates: Provided, That this basis is used with respect to all contracts with an institution. Insert the following clause in contracts with educational institutions where such negotiated overhead rates are to be used pursuant to this subpart. The appropriate "interim payment" clause set forth in § 2-3.704-3 shall be used in conjunction with this clause:

NEGOTIATED OVERHEAD RATES
(PREDETERMINED)

(a) Notwithstanding the provisions of the clause of this contract entitled "Allowable Cost and Payment", the allowable indirect costs under this contract shall be obtained by applying predetermined overhead rates to bases agreed upon by the parties, as specified below.

(b) The contractor as soon as possible but not later than three (3) months after the expiration of his fiscal year shall submit to the contracting officer with a copy to the

cognizant audit activity, a proposed predetermined overhead rate or rates based on the contractor's actual cost experience during that fiscal year, together with supporting cost data. Negotiation of predetermined overhead rates by the contractor and the contracting officer shall be undertaken as promptly as practicable after receipt of the contractor's proposal.

(c) Allowability of costs and acceptability of cost allocation methods shall be determined in accordance with Subpart 1-15.3 of the Federal Procurement Regulations as is in effect on the date of this contract.

(d) The results of each negotiation shall be set forth in a modification to this contract, which shall specify (1) the agreed predetermined overhead rates, (ii) the bases to which the rates apply, (iii) the fiscal year unless the parties agree to a different period for which the rates apply, and (iv) the specific items treated as direct costs or any changes in the items previously agreed to be direct costs.

(e) Pending establishment of predetermined overhead rates for any fiscal year or different period agreed to by the parties, the contractor shall be reimbursed either at the rates fixed for the previous fiscal year or other period or at billing rates acceptable to the contracting officer subject to appropriate adjustment when the final rates for that fiscal year or other period are established.

(f) Any failure by the parties to agree on any predetermined overhead rate or rates under this clause shall not be considered a dispute concerning a question of fact for decision by the contracting officer within the meaning of the "Disputes" clause of this contract. If for any fiscal year or other period specified in the schedule of this contract the parties fail to agree to a predetermined overhead rate or rates it is agreed that the allowable indirect costs under this contract shall be obtained by applying negotiated final overhead rates in accordance with the terms of the "Negotiated Overhead Rates-Postdetermined" clause set forth in section 2-3.704-2 of the Federal Procurement Regulations as in effect on the date of this contract.

(g) Allowable indirect costs for the period until the end of the contractor's fiscal year during which performance begins shall be obtained by applying the predetermined overhead rate set forth in the schedule to the bases set forth therein.

When predetermined overhead rates are to be used and no such rate or rates have been established for the contractor's current fiscal year, the contracting officer shall obtain from the contractor during the contract negotiations a proposal for a predetermined overhead rate or rates to be applied until the end of such fiscal year. As far as practicable, such proposal should be based on the con

When the contract includes a "negotiated overhead rate" clause as set forth in § 2-3.704-1 or § 2-3.704-2, one of the clauses listed below (whichever is consistent with the contractor's normal method of interim and final overhead reimbursement) shall be inserted in the contract schedule:

(a) The following clause shall be used when the contractor's normal method of interim overhead reimbursement is based on billing rates approved by the contracting officer (normally through an exchange of correspondence) rather than on formally negotiated provisional rates:

INDIRECT COSTS (BILLING RATES)

Pending the establishment of final overhead rates as provided for in the clause entitled "Negotiated Overhead Rates", the contractor shall be reimbursed for indirect costs on the basis of billing rates acceptable to the contractor and the Government auditor.

Prior to establishing or changing the billing rates, the contracting officer should seek the advice of the Agency's audit function as to the acceptability of the billing rates proposed by the contractor.

(b) The following clause shall be used when the contractor's normal method of interim overhead reimbursement is based on negotiated provisional rates. The provisional rates will remain in effect until such time as the contract is amended. The rates shall be listed immediately below the clause along with the base of applications for each rate listed:

tractor shall be reimbursed for indirect costs on the basis of the negotiated provisional rates set forth below, which rates shall remain in effect until the contract is amended to incorporate either (a) final overhead rates for a specific period or periods or (b) revised negotiated provisional overhead rates as provided for in paragraph (e) of the clause of this contract entitled "Negotiated Overhead Rates".

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. Provisional overhead rates may be revised after the contracting officer has either (1) received advice that the Department of Defense or other Government office sponsoring overhead negotiations with the contractor has negotiated acceptable overhead rates or (2) if the FAA is sponsoring the negotiations, the FAA contracting officer has arrived at an agreement with the contractor on the rates to be used (see also § 2-3.704-5). § 2-3.704-4 Audit determination(actual).

Where it is not apparent that any of the major purposes enumerated in § 2-3.702 results or will result by the use of negotiated final overhead rates, the contracting officer will provide for settlement of overhead by audit determination. In these cases the following clause shall be used in lieu of the "Negotiated Overhead Rate" clause prescribed in §§ 2-3.704-1 and 2-3.704-2:

INDIRECT COSTS (ACTUAL)

In addition to all costs reimbursable under the "Allowable Cost, Fixed Fee and Payment" clause of the contract, the contractor shall be paid his actual overhead cost. Allowable overhead cost will be detrmined in accordance with the principles set forth in Subpart 1-15.2 of the Federal Procurement Regulation. Any failure of the parties hereto to agree as to what constitute actual overhead costs shall be considered a dispute covering a question of fact within the meaning of the clause of this contract entitled "Disputes". § 2-3.704-5

clauses.

Modification of contract

When a separate negotiated overhead rate agreement is used in accordance with § 2-3.705(c), the clauses in §§ 2-3.704-1 and 2-3.704-2 may be appropriately modified.