Subpart 3-3.2-Circumstances

Permitting Negotiation

SOURCE: 35 FR 10899, July 7, 1970, unless otherwise noted.

§ 3-3.200 Scope of subpart.

The citation of authority under which a contract is negotiated shall be referenced to the statutory provisions, for example, the proper citation for use of the exception contained in § 13.211 of this title is: 41 U.S.C. 252(c)(11). The citation of authority to negotiate under other law (§ 1-3.215 of this title) shall be as prescribed in § 33.215.

§ 3-3.201 National emergency.

(a) Limitations. This authority shall not be used for other than (1) assistance to labor surplus areas or small business concerns, and (2) administration of the Balance of Payments Program, without the prior written approval of the head of the procuring activity, or his designee.

§ 3-3.204 Personal or professional services.

(a) Limitations. This authority shall not apply to the procurement of management consultant services.

§ 3-3.205 Services of educational institutions.

(a) [Reserved]

(b) Limitations. (1) This authority shall be used only for the procurement of specialized noncommercial services which are customarily performed by educational institutions. Use of this authority for any service other than those listed in § 1-3.205(a) of this title shall require a written determination with supporting facts by the head of the procuring activity that the particular type of service is available only from educational institutions.

(2) Proposals shall be solicited from as many educational institutions as are known to possess the required capability. This shall be consistent with § 1-3.101(c). Solicitation of a single educational institution shall require a written "Justification for Noncompetitive Procurement" in accordance with the requirements of Subpart 3-3.8.

(3) Where the circumstances of both paragraphs (f) (1) and (2) of this section pertain in the same case, the required determinations shall be combined and made by the head of the procuring activity.

[35 FR 10899, July 7, 1970, as amended at 35 FR 19752, Dec. 30, 1970]

§ 3-3.206 Purchases outside the United States.

(a) This authority shall be used in preference to any other authority under the circumstances set forth in § 1-3.206 of this title.

§ 3-3.210 Impracticable to secure competition by formal advertising.

(a) Application. (1) Negotiation under § 1-3.210 of this title shall be conducted on a competitive basis to the maximum practicable extent; except, when negotiation is justified under the circumstances specified in § 1-3.210(a)(1) of this title.

(2) The illustration specified in § 13.210(a)(3) of this title shall apply only if the negotiation is for the identical requirements specified in the unresponsive bid. If specification deviations are authorized or if delivery, quantity, or other requirements are changed, the revised requirements shall be readvertised or, if appropriate, negotiated under one of the other authorities prescribed in Subpart 1-3.2 of this title.

(3) Cases of doubt in applying the illustration specified in § 1-3.210(a)(13) of this title shall be resolved in favor of formal advertising.

(b) Limitations. This authority shall not be used when negotiation is authorized by any other authority set forth in §§ 1-3.201 through 1-3.215 of this title.

§ 3-3.211 Experimental, developmental, or research work.

(a) Limitations. Whenever more than single unit quantities of equipment or supplies are to be procured under this authority, the quantity shall be justified as reasonable and essential by the program authority submitting the procurement request.

§ 3-3.212 Purchases not to be publicly disclosed.

(a) Limitations. This authority shall be used in preference to any other authority when competition is to be limited because of the need for nondisclosure (also see § 1-1.1003 of this title).

§ 3-3.215 Otherwise authorized by law.

(a) When other statutory authority is the basis for negotiation, the proper citation for the contract is 41 U.S.C. 252(c)(15) plus the section number, title of the Act, and the Pub. L. number (or U.S.C. citation) of the statute which permits negotiation. For example, the proper citation in a contract for the procurement of expert and consultant service would be 41 U.S.C. 252(c)(15) and 5 U.S.C. 3109.

Subpart 3-3.3-Determinations, Findings, and Authorities

SOURCE: 35 FR 9004, June 11, 1970, unless otherwise noted.

§ 3-3.301 General.

(a) Determinations and findings which authorize negotiation of contracts and determinations which support other procurement actions shall be made by the officials specified in § 3-3.303 and §§ 3-3.303-50 and 3-3.30352.

(b) Class determinations and findings shall be justified on the basis of need to avoid processing multiple determinations and findings when more than one contract must be negotiated under the same negotiation authority for the same program or project. The multiple procurements must be for items or services which are to be negotiated at or near the same time and are so related as to constitute a logical and distinct class. All class determinations and findings shall be limited to a period of 1 year or less, except that those determinations and findings required by § 1-3.211 may be authorized for 3 years.

[35 FR 9004, June 11, 1970, as amended at 42 FR 2683, Jan. 13, 1977]

§ 3-3.302 Determinations and findings required.

The following determinations in connection with the negotiation of contracts are required to be made in writing, supported by written findings.

(a) The determination required by section 304(b) of the Act (41 U.S.C. 254(b)) as to estimated cost of, and fees to be paid under, cost-plus-afixed-fee contracts (see §§ 1-3.401, 13.405-4, and 1-3.405-5(c)(2));

(b) The determination required by section 304(b) of the Act that the use of a cost or a cost-plus-a-fixed-fee contract or an incentive-type contract is likely to be less costly than other methods or that it is impracticable to secure property or services of the kind or quality required without the use of a cost or cost-plus-a-fixed-fee contract or an incentive-type contract (see §§ 13.404-4 and 1-3.405-1 of this title):

(c) The determination required by section 303(b) of the Act (41 U.S.C. 253(b)) that it is in the public interest to reject all bids:

(d) The determination required by section 305(c) of the Act (41 U.S.C. 255(c)) that the making of advance payments would be in the public interest (see § 1-30.405 of this title);

(e) The determinations required with respect to waiving a requirement for the submission of cost or pricing data and the certification thereof (see § 1-3.807-3(b) of this title) and for the inclusion of the clauses required by §§ 1-3.814-1 through 1-3.814-3 of this title in contracts with foreign governments or agencies thereof.

(f) The determinations required by section 304(c) of the Act (41 U.S.C. 254(c)) and Subpart 1-6.10 of Part 1-6 with respect to omitting the clause specified in § 1-7.101-10 or § 1-7.602-7 of this title from contracts with foreign contractors or subcontractors regarding the right of the Comptroller General of the United States to examine the contractor's records when it is determined (1) that the omission will serve the best interests of the United States, or (2) that the public interest will best be served by the omission (see § 1-6.1001 of this title).

(g) Exceptions to the restrictions of the Buy American Act (41 U.S.C.

10(a-d) and determinations under the Balance of Payments program; see Subpart 3-6.1 of Part 3-6 and Part 1-6 of this title.

(h) Use of time and materials or labor-hour type contract (see § 1-3.406 of this title).

(i) Acquisition of construction of equipment or facilities on property not owned by the United States pursuant to an appropriation or other act incorporating the provisions of 10 U.S.C. 2353.

(j) Use of indemnification provision in a research contract pursuant to an appropriation or other act incorporating the provisions of 10 U.S.C. 2354.

(k) Use of letter contracts (see § 13.408).

[37 FR 17472, Aug. 29, 1972]

§ 3-3.303 Determinations and findings by the head of the agency.

The following determinations and findings shall be made by the Assistant Secretary for Health and Scientific Affairs (where health programs are involved), the Assistant Secretary for Education (where education programs are involved), or the Assistant Secretary for Administration and Management (where other programs are involved).

(a) The determination required by § 1-3.211 of this title with respect to contracts which will require expenditure in excess of $25,000.

(b) The determinations required by §§ 1-3.212 of this title and 3-3.213 of this part.

(c) The determination required for the omission of the Examination of Records clause from contracts with foreign contractors or subcontractors (see § 1-6.1004 of this title).

(d) Determinations in accordance with § 1-6.103-3.

[37 FR 17472, Aug. 29, 1972]

spect to the use of an indemnification provision in a research contract.

[37 FR 17472, Aug. 29, 1972]

§ 3-3.303-51 Determinations and findings by the Director, Office of Procurement and Materiel Management.

The determination required by § 13.202(d) that the making of advance payments is in the public interest shall be made by the Director, Office of Procurement and Materiel Management OS-OASAM.

[37 FR 17472, Aug. 29, 1972]

§ 3-3.303-52 Determinations and findings by the head of the procuring activity. (a) The following determinations and findings shall be made by the head of the procuring activity or his designee.'

(1) The determination required by § 1-3.201 for reasons other than:

(i) Assistance to labor surplus areas or small business concerns, and

(ii) Administration of the Balance of Payments Program.

(2) The determinations and findings required by §§ 1-3.202 and 1-3.214.

(3) The determinations and findings required by §§ 1-3.302(c) and 13.302(e).

(4) The determinations which support exceptions to restrictions of the Buy American Act (41 U.S.C. 10(a-d)) and the determinations and deviations required by Subpart 1-6.8 in administration of the Balance of Payments Program, within the limitations of Subpart 3-6.1 and Part 1-6.

(5) The determination required for application of 10 U.S.C. 2353, (b)(1), and (b)(2).

(6) All class determinations and findings except for the categories specified in §§ 3-3.303 and 3-3.303-51.

(7) The determinations and findings which support proposed payment of fixed fees in excess of: (i) 10 percent of estimated costs, exclusive of fee, of any cost-plus-a-fixed-fee contract for experimental, developmental, or research work, or (ii) 7 percent of estimated cost, exclusive of fee, for any

'A designee for making these determinations must be at least one organizational level above that of the contracting officer.

§ 3-3.303-53 Determination and findings by the contracting officer.

The following determinations and findings shall be made by the contracting officer, unless the head of the procuring activity decides otherwise:

(a) The determinations required by §§ 1-3.207; 1-3.208, 1-3.210; and 1-3.215, if any.

(b) The determination required by § 1-3.211 for contracts not in excess of $25,000.

(c) The determinations required by § 1-3.302 (a) and (b).

(d) Any other determinations and findings not required to be made by higher authority.

[37 FR 17472, Aug. 29, 1972]

§ 3-3.305 Form and requirements of determinations and findings.

(a) Written determinations and findings shall be prepared in accordance with § 3-3.305-50.

[35 FR 9004, June 11, 1970, as amended at 41 FR 19634, May 13, 1976)

§3-3.305-50 Sample formats.

(a) Negotiation authority. Operating agencies will prescribe formats for determinations and findings made under §§ 1-3.202, 1-3.207, and 1-3.208. The following formats are prescribed for determinations and findings made under §§ 1-3.210 through 1-3.214:

(1) Section 1-3.210. Individual contract.

DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE

DETERMINATION AND FINDINGS

Authority to Negotiate an Individual Contract Under 41 U.S.C. 252(c)(10)

I hereby find that:

(1) The (agency title) proposes to procure (describe the work, service, or product) (identify program or project).

'See footnote on previous page.

(2) It is impracticable to secure competition by formal advertising for the contract contemplated because:

(a) (Set forth facts and circumstances which support a judgment that competition by formal advertising is impracticable. Facts and circumstances presented must conform to the § 1-3.210 paragraph selected as justification for negotiation.)

I hereby determine that:

On the basis of the above findings, the proposed procurement is for (work, services, or products 2) for which it is impracticable to secure competition by formal advertising and that negotiation of a contract for such (work, services, or products 2) is authorized pursuant to 41 U.S.C. 252(c)(10), as contemplated by § 1-3.210(a); provided, the required (work, service, or product 2) has been authorized by law.

Date

(Signature)

(2) Section 1-3.211. Individual contract.

DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE

DETERMINATION AND FINDINGS

Authority to Negotiate an Individual Contract Under 41 U.S.C. 252 (c) (11)

I hereby find that:

(1) The (agency title) proposed to procure (describe work to be performed or product to be delivered) (identify program or project and state estimated contract price).

(2) The proposed procurement is for (experimental, developmental, or research work, or for the manufacture or furnishing of property for experimentation, development, research, or test 2). (Set forth facts and circumstances which support a judgment that the work to be performed is in fact experimental, developmental, or research.)

(3) It is impracticable to secure competition by formal advertising for the contract contemplated because:

(a) (Set forth reasons why the procurement contemplated can not be formally advertised, e.g. only ultimate objectives and general scope or work can be outlined, work cannot be described by definite drawings and specifications, etc.)

I hereby determine that:

On the basis of the above findings, the proposed procurement is for (experimental, developmental, or research work, or for the manufacture or furnishing of property for

Use applicable word.

'Insert appropriate § 1-3.210(a) subparagraph number.

experimentation, development, research, or test 2) and that negotiation of a contract for such (work or property 2) is authorized pursuant to 41 U.S.C. 252(c)(11); provided, the (work or property 2) has been authorized by law.

Date

(Signature)

(3) Section 1-3.211. Class of contracts.

DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE

DETERMINATION AND FINDINGS

Authority to Negotiate a Class of Contracts Under 41 U.S.C. 252(c) (11)

I hereby find that:

(1) The (agency title) proposes to negotiate approximately (number) contracts in support of (identify program or project, and state the anticipated funding level).

(2) The proposed procurements are for (experimental, developmental, or research work, or for the manufacture or furnishing of property for experimentation, development, research, or test 2).

(a) (Set forth facts and circumstances which support a judgment that the work to be performed is in fact experimental, developmental or research).

(3) It is impracticable to secure competition by formal advertising for the contracts contemplated because:

(a) (Set forth reasons why the procurements cannot be formally advertised, e.g., only ultimate objectives and general scope of work can be outlined, work cannot be described by definite drawings and specifications, etc.)

I hereby determine that:

On the basis of the above findings, the proposed procurements are for (experimental, developmental, or research work, for the manufacture or furnishing of property for experimentation, development, research, or test) and that negotiation of contracts for such (work or property 2) is authorized pursuant to 41 U.S.C. 252(c)(11); provided the required (work or property 2) has been authorized by law.

This class determination shall remain in effect until (state terminal date (limit effective period not to exceed three years)). Date

Signature

(4) Section 1-3.212. Individual contract.

'Use applicable word.

Department of HEALTH, EDUCATION, AND WELFARE

DETERMINATION AND FINDINGS

Authority to Negotiate an Individual Contract Under 41 U.S.C. 252(c)(12)

I hereby find that:

(1) The (agency title) proposes to procure (describe the work, service, or product) identify program or project.

(2) This procurement can not be publicly disclosed because (explain either the basis for classification of the contract or the other considerations which the Secretary should know in order to determine that the property or services should not be publicly disclosed).

(3) (Set forth reasons why the procurement can not be for.nally advertised.) I hereby determine that:

On the basis of the above findings, procurement of the (property or services') should not be publicly disclosed and the negotiation of a contract for such (property or services) is authorized pursuant to 41 U.S.C. 252(c)(12); provided, the required (property or service) has been authorized by law. Date

(Signature)

(5) Section 1-3.214. Individual contract.

DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE

DETERMINATION AND FINDINGS

Authority To Negotiate an Individual Contract Under 41 U.S.C. 252(c)(14)

I hereby find that:

(1) The (agency title) proposes to procure (describe work, service or product) (identify program or project).

(2) The proposed procurement was solicited by formal advertising under IFB (No. and date). The lowest responsive bid offered a (unit or aggregate) price of ($———) which is considered excessive in relation to the prices ($———), estimated as reasonable by (agency title).

(Note: If applicable, use the following statement: "The prices of bids received were not independently arrived at in open competition.") (Set forth facts and circumstances to support this statement.)

I hereby determine that:

On the basis of the above findings, bid prices received under IFB (No. and date) (are unreasonable; have not been independently arrived at in open competition) and that negotiation of a contract for (describe

Use applicable word or statement.