the Director. Office of Administrative Management Policy, before award is made. The Office of Administrative and Management Policy shall obtain advice from the GAO as to the current status of the protest before approving any such determination to make award. If the Office of Administrative and management Policy then determines that the facts presented in the determination justify and warrant the making of award prior to resolution of the protest, the Director may approve such determination to make award. The Office of Administrative and Management Policy shall notify the GAO by telephone that award has been authorized and a copy of the approved determination to make the award shall be transmitted to the GAO, the protester, and others who were notified of the protest.

(f) Submission of report. (1) Within 25 working days after receipt by the Office of Administrative and Management Policy of the complete statement of protest, a report on the protest or a written statement setting forth the reasons for any delay and the expected date of submission shall be submitted to the GAO as prescribed in this § 14-2.407-8.

(2) The Office of Administrative and Management Policy will transmit the formal GAO request for a report to the head of the procuring activity concerned using a "Protest Transmittal/ Scheduling Record" (hereinafter called "Transmittal Record"). This Transmittal Record will originate in the Office of Administrative and Management Policy. It will be sent in duplicate to the head of the procuring activity and will show all pertinent data available at the time it is prepared, including the tentative date the report is due in the Office of Administrative and Management Policy (normally 20 working days from the date of the preparation of the Transmittal Record) and the tentative date the report is due in the GAO. If GAO furnishes the Department with a full and complete statement on the protest with its report request, the dates for report submission in the Transmittal

Record will be firm instead of tentative.

(3) The head of the procuring activity shall, within 2 working days after receipt of the Transmittal Record, transmit the written statement of protest, with the duplicate Transmittal Record, to the contracting officer involved. The initial transmittal shall be made by facsimile, if available, followed by transmittal of the actual protest documents in the next mail.

(4) If the GAO furnishes a complete statement of the protest at a later time than the date the initial request for a report is made, a new submission date will be established by the Office of Administrative and Management Policy, and the head of the procuring activity will be notified accordingly. In each case, the contracting officer shall be promptly notified by the head of the procuring activity and the new submission date shall be entered on the Transmittal Record in the space for "Authorized Time Extensions", along with the reasons therefor.

(5)(i) The contracting officer shall prepare a written report responsive to the protest. The report shall be appropriately titled and dated; shall cite the GAO case file (B-) number assigned to the protest; shall include the documents and statements required by § 12.407-8(a)(2) of this title, and must be signed by the contracting officer. Other relevant supporting documents may also be appended.

(ii) If appropriate, the report shall contain a statement regarding any urgency for the procurement and the extent to which a delay in award may result in significant performance difficulties or additional expense to the Government. If award is not urgent, a statement shall be included giving an estimate of the length of time an award may be delayed without significant expense or difficulty in perfor

mance.

(iii) A letter transmitting the contracting officer's report on the protest to the GAO shall be prepared by the procuring activity, for signature of the Director, Office of Administrative and Management Policy. The letter must be addressed to the individual in the GAO who signed the request for the initial or supplementary report on the

protest. It shall state that copies thereof have been sent to the protester and other named parties who had been given notice of the protest. Prior to submission of the report to the Office of Administrative and Management Policy, the transmittal letter and complete protest report shall be approved for legal sufficiency by the appropriate office of the Solicitor, in accordance with legal review procedures of the procuring activity concerned. Information copies of the letter and report shall be prepared for the cognizant Assistant Secretary; the Assistant Secretary-Administration and Management; the Director, Office of Administrative and Management Policy; the Associate Solicitor, Division of General Law; the protester; and other interested parties. The external distribution only, must be shown on the original of the transmittal letter to the GAO. In addition, there shall be prepared for the signature of the Director, Office of Administrative and Management Policy, letters to the protester and other interested parties, transmitting a copy of the complete report on the protest, including all appendices and attachments. The letters shall include a statement on any information which has been withheld and the justification for such withholding. The letters shall advise recipients that any comments they desire to make must be filed with the Office of the General Counsel, GAO, with copies to the procuring activity concerned and the Office of Administrative and Management Policy, within 10 working days after receipt of the report. After signature, all letters will be concurrently mailed by the Office of Administrative and Management Policy.

(iv) The transmittal letters to the GAO shall, unless otherwise directed by the Office of Administrative and Management Policy, be prepared in a format similar to the following:

Mr. (name of GAO person requesting report), (Title),

General Accounting Office,
Washington, D.C. 20548

(v) When preparing copies of the report for external distribution, contracting officers must assure that no trade secrets or commercial or financial information which is privileged or confidential and is obtained from any person is furnished to those not authorized to have access thereto, and must place a notice that such material has been withheld in each such copy. This notice of information withheld must also appear in the GAO copy of the report.

(vi) When the contracting officer's protest report and all transmittal letters are completed, the date of completion shall be entered in the appropriate space on the Transmittal Record, and the report file sent to the appropriate office of the Solicitor for legal review. When the Solicitor's review is completed, this date shall be entered on the Transmittal Record.

(vii) After initial review and approval by the appropriate office of the Solicitor, the entire report, covered by the duplicate Transmittal Record, shall be further reviewed in accordance with any procedures of the procuring activity concerned and forwarded to the Office of Administrative and Management Policy for final action. The Office of Administrative and management Policy will obtain final legal review by the Associate Solicitor, Division of General Law, prior to submitting the report to the GAO.

(viii) If, after final review, it is determined that revisions to the report are necessary, the report package will be returned to the head of the procuring

activity

concerned for appropriate action. If the Office of the Solicitor or the Office of Administrative and management Policy desires to make additional comments on the protest report, such comments will normally be prepared as addenda to the protest report and referenced in the letter transmitting the report.

(ix) If the GAO requesʊs additional information, a supplementary report must be sent to the GAO within 5 working days after the request is received by the Department, following the procedures in § 14-2.407-8(f)(5) of this section.

(g) Conference on protest. Any interested party may request a conference with the GAO on the merits of a protest. All interested parties will be invited to attend such a conference and present their comments. Any requests for a conference from within the Department shall be made through the Office of Administrative and Management Policy, in coordination with the Office of the Solicitor, Division of General Law.

(h) Protests after award. Protests received after award of contract are subject to the same procedures for processing as set forth in this § 14-2.407-8 and § 1-2.407-8(c) of this title. They shall be given priority treatment by all personnel. Protest reports on protests after award shall include a statement on the status or performance under the contract and the date anticipated for contract completion.

(i) Report of corrective action. When a GAO decision contains a recommendation for corrective action and directs the agency's attention to section 236 of the Legislative Reorganization Act (31 U.S.C. 1176), the GAO will transmit a copy of the decision to the Congressional committees named in section 232 of the Act (31 U.S.C. 1172). The Department is required by section 236 of the Act to submit to the House and Senate Committees on Appropriations and Government Operations a written statement of the corrective action taken. The required statement shall be prepared and submitted by the head of the procuring activity involved to the Office of Administrative and Management Policy within 50 calendar days after the date of the GAO

14-3.303 Determinations and findings by the head of the agency.

14-3.305 Form and requirements of determinations and findings.

14-3.305-50 Preparation of determinations and findings.

14-3.305-51 Summary of required determinations and findings.

Appendix A-Determinations and findings to negotiate an individual contract under 41 U.S.C. 252(c)(2)

Appendix B-Determinations and findings to negotiate an individual contract under 41 U.S.C. 252(c)(10)

Appendix C-Determination and findings to negotiate a class of cost-type contracts for experimental, developmental and research work under 41 U.S.C. 252(c)(11), 254, and 257 Appendix D-Determination and findings to negotiate a contract after advertising under 41 U.S.C. 302(c)(14) and 307

(a) In connection with negotiated contracts, only the names of successful offerors and the prices at which the awards were made shall ordinarily be publicly disclosed. Information to an unsuccessful offeror concerning the merits or quality of a competitor's products shall be limited solely to the statement, if applicable, that adequate inspection or testing has shown that the successful offeror's products have met the requirements of the contract or purchase order. This shall not be construed as prohibiting purchasing officers from informing a supplier concerning the results of tests on the supplier's own products, or prohibiting purchasing officers in connection with

their individual duties and responsibilities as members of technical committees from making necessary contracts with testing laboratories.

(b) The requirements of § 14–2.407–1 of this chapter relative to advance notices required prior to making contract award shall apply to negotiated contracts.

[39 FR 43630, Dec. 17, 1974]

§ 14-3.150 Justification for noncompetitive procurement.

(a) General. While competition must be obtained to the maximum extent practicable, there may be circumstances where one organization or individual has unique capability by reason of specialized facilities, technical competence or other considerations to provide the product or services within the time required and at a reasonable price. In such circumstance, the initiating program office may recommend that the requirement be obtained from a single source on a noncompetitive basis. The recommendation shall be in writing, identified as a "Justification for Noncompetitive Procurement," shall set forth full and complete justification for the selection, and shall be subject to verification and approval by the appropriate authority stated in paragraph (f) of this 814-3.150 prior to any procurement action. The justification shall not relieve the contracting officer of any other requirement for a determination and findings (see Subparts 13.2 and 1-3.3 of this title and Subparts 14-3.2 and 14-3.3 of this chapter).

is re

(b) Applicability. A justification for noncompetitive procurement quired for (1) contracts resulting from unsolicited proposals, (2) contracts involving property or services to be acquired from only one source, and (3) all modifications to existing contracts which continue such contracts or increase the contract price and scope of work. The provisions of this § 14-3.150 do not apply to procurement from other Government agencies including contracts with the Small Business Administration in accordance with § 11.713 of this title.

(c) Documentation. All justifications shall be documented by information

based on substantiated facts; shall provide a clear and complete discussion of the reasons that make competitive negotiation impractical or not feasible; and must be sufficient to permit an individual without technical competence in the area to follow the rationale. If a unique capability is claimed, details must be furnished describing the way in which the source is uniquely qualified. If it is claimed that the property or service can be obtained from only one source the justification shall also describe why only that particular property or service will satisfy the requirement. If it is claimed that the urgency of the requirement dictates a noncompetitive procurement, the justification must factually describe the reason for the urgency, explain how the noncompetitive procurement will meet the schedule, and contain a precise statement as to the loss that will be sustained if the delivery schedule is changed to allow time for competitive negotiation. A mere recitation of an administratively established deadline, commissioning date, or implementation schedule is not sufficient.

(d) The following factors should be considered, as may be appropriate and pertinent to the particular procurement, in preparing the justification:

(1) Continuation of previous effort. State whether or not the requirement is a continuation of work previously performed by the proposed contractor (including pertinent background data and identity of the previous work by contract number) and details as to why the award of such continuation of work to another contractor would require additional time, money or duplication of effort to bring a new contractor up to the level of expertise of the incumbent. State what positive actions are being taken to enable competitive procurement of subsequent related requirements. If the previous procurement was noncompetitive, state what actions were taken to promote competition for the proposed procurement and the reasons why those actions have not resulted in the availability of competition.

(2) Technical data and information. State whether or not drawings and specifications suitable for competition are available. If they are not available,

state whether or not it is possible to develop them; explain the leadtime and cost involved to obtain them; and state why the proposed contractor is best able to perform under these conditions.

(3) Other sources considered. State whether or not other sources were considered for the requirement; list the other sources considered and state the degree of consideration given each and the particular capabilities each one lacks to fulfill the requirement.

(4) Other factors. State why the proposed contractor is best able to fill the requirement and meet the required delivery schedule including such factors

as:

(i) Particular capabilities. State the capabilities that the proposed contractor possesses of a highly specialized nature that are vital to the proposed effort and that are so unique to the specific effort that they would exclude offering all other contractors in the same general field the opportunity to present their capabilities for evaluation competitively. State what personnel of the proposed contractor are considered experts in the particular field of effort and the basis therefor.

(ii) Facilities and/or specialized equipment. State the facilities and specialized equipment vital to the requirement that the proposed contractor possesses which are not available from other sources. State whether or not Government-owned equipment or facilities are involved and to what extent.

(iii) Substantial investment. State whether the proposed contractor has made a substantial investment and the nature and estimated cost thereof which would have to be duplicated at Government expense by another source entering the field.

(iv) Patents, data, copyrights. Identify the patents, copyrights or proprietary rights which the contractor holds which preclude award of the work to any other source. State what technical data the proposal contains that is not available from another source and which makes it not feasible or practicable to define the Government's requirement in such a way as to avoid the necessity of using the