provides another

the DASFEPM, OFEPM, written authorization for POC to do so. When evaluation and selection actions are performed by a principal operating component consistent with the provisions of § 3-4.10041(a) (3) and (4) the responsible contracting officer of the POC may likewise negotiate and award the related A/E engineer contracts. Qualified contracting officers shall use the services of technical, legal, audit-pricing, and other specialists in the component to the extent deemed appropriate (see §§ 1-3.801-2 and 1-3.803-3). Negotiations should be directed toward:

(1)-(3) [Reserved]

(4) Reaching mutual agreement on the provisions of the contract; and

(5) Arriving at a fair and reasonable price. See § 1-3.807-2, Requirements for Cost and Price Analysis; and § 13.807-1, Overhead Rate Considerations. See § 3-3.50.301(j) regarding the documentation requirements for cost breakdown and analysis.

(b) [Reserved]

(c) The principles set forth relative to preparation for negotiation (see § 34.1005) shall apply to the negotiation of modifications to contracts.

(d) Where the modification involves work not initially included in the contract the statutory limitation is applicable, consistent with the following provisions, to the revised total estimated construction costs. Where redesign is required and the contract is modified, the following methods shall be used in determining the amount of the basic fee to be paid the architect:

(1) The estimated construction cost of the redesigned features will be added to the original estimated construction cost;

(2) The contract cost for the original design will be added to the contract for redesign; and

(3) The total contract design cost obtained by paragraph (d)(2) of this section will be divided by the total construction cost obtained by paragraph (d)(1) of this section.

§ 3-4.1005-6 Record of negotiation.

Promptly at the conclusion of each negotiation, a memorandum setting forth the principal elements of the ne

gotiations shall be prepared by the contracting officer in accordance with the requirements of § 1-3.811, for use by the reviewing authorities and for inclusion in the contract file. The memorandum shall contain sufficient detail to reflect the significant consideration controlling the establishment of the price and other terms of the contract. Negotiation memorandums must be prepared in accordance with § 3-50.3 and meet the requirements of that subpart.

Subpart 3-4.51-Paid Advertising

SOURCE: 37 FR 15861, Aug. 5, 1972, unless otherwise noted.

§ 3-4.5100 Scope of subpart.

This subpart provides policies and procedures for the procurement of paid advertising as covered by Title 5, U.S.C. 302, Title 44, U.S.C. 321, 322, and 324, and title 7, chapter 5, section 25.2, General Accounting Office Policy and Procedures Manual for Guidance of Federal Agencies.

§ 3-4.5101 Policies and procedures.

(a) Authority to purchase paid advertising must be granted in writing by an official delegated such authority (See Subpart 3-75.3 of Part 3-75 of this Part). No advertisement, notice of proposal will be published prior to receipt of advanced written authority for such publication. No voucher for any such advertisement or publication will be paid unless there is presented, with the voucher, a copy of such written authority.

(b) Requests for procurement of advertising shall be accompanied by written authority to advertise or publish which sets forth justification and includes the names of newspapers or journals concerned, frequency and dates of proposed advertisements, estimated cost, and other pertinent information.

(c) Paid advertisements shall be limited to publication of essential details of invitations for bids and requests for proposals including those for the sale of personal property, and for the recruitment of employees.

(d) Standard form 1143, Advertising Order, shall be used for procurement and payment of paid advertising. Procedures for payment of vouchers are contained in title 7, chapter 5, section 25.2, General Accounting Office Manual for Guidance of Federal Agencies.

Subpart 3-4.52-Unsolicited Proposals

SOURCE: 37 FR 16398, Aug. 12, 1972, unless otherwise noted.

§ 3-4.5200 Scope of subpart.

This subpart provides policies and procedures applicable to the handling of documents submitted as unsolicited proposals.

§ 3-4.5201 Definition.

An "unsolicited proposal" is a written offer to perform research and development work (including feasibility studies and demonstrations) submitted to the Government by an organization or individual solely on its own initiative and without prior formal or informal solicitation. Unsolicited proposals purport to represent original effort by the offeror, in the form of new and unique ideas, and are offered in the hope that the Government will support the offeror in the further pursuit of the research and development activities proposed therein.

§ 3-4.5202 Policy.

§ 3-4.5202-1 General.

(a) It is the policy of HEW that its operating agencies inform the public of technological and scientific (including the behavioral and social sciences) areas encompassed by the Department's mission, and to encourage organizations and individuals to originate valuable ideas relevant to the furtherance thereof and to submit such ideas in unsolicited proposals.

(b) All unsolicited proposals should be specific and, as a minimum, include the information set forth below. Although it is desired that unsolicited proposals be prepared in conformance with the standards set forth below, agencies may accept unsolicited pro

posals for evaluation purposes which do not conform thereto:

(1) Name and address of the organization or individual submitting the proposal;

(2) Date of preparation or submission;

(3) Type of organization (profit, nonprofit, educational, other);

(4) Concise title and clear and concise abstract. Extensive material should be included only in appendices; (5) An outline and discussion of the purpose of the proposed effort or activity, the method of attack upon the problem, and the nature and extent of the anticipated results;

(6) Names of the key personnel to be involved (name of principal investigator, if applicable), brief biographical information, including principal publications and relevant experience;

(7) Proposed starting and completion dates;

(8) Equipment, facility, and personnel requirements;

(9) Proposed budget, including separate cost estimates for salaries and wages, equipment, expendable supplies, services, travel, subcontracts, other direct costs and overhead;

(10) Names of any other Federal agencies receiving the unsolicited proposal and/or funding the proposed effort or activity;

(11) Brief description of the offeror's facilities, particularly those which would be used in the proposed effort or activity;

(12) Brief outline of the offeror's previous work and experience in the field;

(13) A current financial statement and, if available, a descriptive brochure;

(14) Period for which unsolicited proposal is valid;

(15) Names and telephone numbers of offeror's primary business and technical personnel whom the agency may contact during evaluation and/or negotiation;

(16) Identification, on the cover sheet, of technical data which the offeror intends to be used by HEW for evaluation purposes only (see § 31.353(c) of the HEWPR); and

(17) Signature of a responsible official of the proposing organization or a person authorized to contractually obligate such organization.

(c) Unsolicited proposals should be submitted well in advance of the desired beginning of support, and in ample copies (five copies as a minimum) to allow simultaneous study by all reviewers.

(d) All unsolicited proposals shall be acknowledged as soon after receipt as possible and should be processed in an expeditious manner.

§ 3-4.5202-2 Treatment of technical data in unsolicited proposals.

The treatment of technical data contained in unsolicited proposals and the legends to be used are contained in § 31.353 of the HEWPR.

§ 3-4.5202-3 Method of procurement.

(a) It is HEW's policy to obtain competition whenever possible (see § 11.301-1). However, if a decision is made to award a contract to an offeror on the basis of an unsolicited proposal, the procurement will be conducted without competition.

(b) Subject to the provisions of § 34.5203-3(a), a document which qualifies as an unsolicited proposal may not serve as the basis for a competitive solicitation of proposals. Therefore, a determination must be made as to whether a document qualifies as an unsolicited proposal during the preliminary review of the document in accordance with § 3-4.5203-1.

(c) The propriety of awarding a contract to support research and development work based upon an unsolicited proposal shall be determined in accordance with the criteria prescribed in Subpart 3-1.53.

§ 3-4.5203 Procedure.

§ 3-4.5203-1 Preliminary review.

(a) A preliminary review of each document submitted as an unsolicited proposal shall be conducted by program personnel of the receiving agency to determine that it:

(1) Contains sufficient technical and cost information to enable meaningful evaluation;

(2) Has been approved by a responsible official of the proposing organization or a person authorized to contractually obligate such organizations; and (3) Does not merely offer to perform standard services, such as routine analyses or testing in accordance with established procedures, or to provide "off-the-shelf" articles.

(b) In addition, the reviewing program official shall make a written determination as to whether the document is truly unsolicited. In making such determination, consideration shall be given to all relevant circumstances, including whether the document may have resulted from: (1) The close professional relationships that frequently develop between program representatives and their counterparts in the scientific community; or (2) the inadvertent disclosure by program personnel of information relating to specific projects being contemplated by HEW or its agencies.

(c) If the document does not meet the requirements of paragraph (a) of this section, or is determined not to be truly unsolicited, a comprehensive evaluation need not be made, and the document may be considered and handled as correspondence or advertising. In such cases a prompt reply shall be sent to the offeror indicating how the document is being interpreted and the reason(s) for not considering it an unsolicited proposal.

(d) When a document, based upon preliminary review, qualifies as an unsolicited proposal, it shall be circulated for comprehensive evaluation in ac

cordance with § 3-4.5203-2, and a copy thereof, together with the reviewing official's written determination, shall be furnished to the chief procurement official of the agency.

§ 3-4.5203-2 Comprehensive evaluation.

(a) Every unsolicited proposal that is circulated for comprehensive evaluation shall have attached or imprinted a legend identifying it as an unsolicited proposal, and stating that it may be used only for purposes of evaluation. See 83-1.353 (c) and (e) of the HEWPR.

(b) In evaluating an unsolicited proposal, the evaluating office(s) shall consider, in addition to any other criteria, the following factors:

(1) The overall scientific and technical merit of the proposed effort;

(2) The potential contribution which the proposed effort is expected to make to specific program objective(s), if supported at this time;

(3) The unique capabilities, related experience, facilities, instrumentation, or techniques which the offeror possesses and offers, and which are considered to be integral factors for achieving the scientific, technical, or technological objective(s) of the proposal;

(4) The unique qualifications, capabilities, and experience of the proposed principal investigator and/or key personnel.

(c) Comprehensive evaluation shall be coordinated according to procedures to be established pursuant to § 3-4.5203-4. If an unsolicited proposal is not to be accepted, the offeror shall be informed by a suitable letter. A copy of such letter and associated unsolicited proposal shall be retained in the files of the agency contracting officer.

§ 3-4.5203-3 Procurement procedure.

(a) Competitive procurement. (1) When a document qualifies as an unsolicited proposal, but its substance is available to HEW without restriction from another source, or its substance closely resembles that of a pending competitive solicitation or otherwise is not sufficiently unique to justify ac

ceptance, HEW's policy of obtaining competition applies (see § 3-4.5202-3).

(2) When procurement is intended and competition is feasible, the unsolicited proposal shall be rejected, as in § 3-4.5203-2. All readily available copies (excluding the contracting officer's official file copy) shall be returned to the offeror.

(b) Noncompetitive procurement. (1) A favorable technical evaluation of an unsolicited proposal is not, in itself, sufficient justification for negotiating on a noncompetitive basis with the offeror. When an unsolicited proposal has received a favorable technical evaluation and it is determined that the substance thereof is not available to HEW without restriction from another source, or competition is otherwise precluded, the subject matter of such unsolicited proposal may be procured from the offeror on a noncompetitive basis. The program office sponsoring the procurement shall support its recommendation with a "Justification for Acceptance of Unsolicited Proposals." The "Justification" shall include the findings set forth in paragraphs (b)(1) (i) or (ii) of this section: (i) The procurement is for basic scientific or engineering research; and the unsolicited proposal was selected on the basis of its overall merit, cost and contribution to the agency's program objectives, after a thorough evaluation and comparison with other proposals, solicited or unsolicited, in the same or related fields; or

(ii) The procurement is for services other than basic research (e.g., development, feasibility studies, etc.); the unsolicited proposal contains technical data or offers unique capabilities that are not available from another source; and it is not feasible or practical to define the Government's requirement in such a way as to avoid the necessity of using the technical data contained in the unsolicited proposal.

(2) In addition, the "Justification" shall include the facts and circumstances that support the recommendation action. The following illustrations represent factors which should be considered, as appropriate, in preparing the "Justification."

(i) The scientific/technical merits of the unsolicited proposal and its potential contribution to the agency's program objectives;

(ii) The qualifications, capabilities, and related experience of the offeror, principal investigator, and/or key personnel;

(iii) Unique facilities, instrumentation, or techniques; and

(iv) Circumstances that operate to preclude competitive negotiation.

(3) The "Justification for Acceptance of Unsolicited Proposal" shall be submitted to the contracting officer together with, but as a separate document from, the request for contract, and shall be signed by the same official of the cognizant program office who signs the request for contract. Approval of the "Justification" shall be made at the same level as prescribed in § 3-3.802-50(d) for approval of "Justifications for Noncompetitive Procurements."

(c) Negotiation. Formal RFP's or RFQ's shall not be issued to obtain additional information required for the negotiation of contracts based on unsolicited proposals. The unsclicited proposal itself constitutes the basis for negotiation and any further technical or budgetary information requested or received shall be considered to supplement, amend or revise the original accepted unsolicited proposal.

§ 3-4.5203-4 Implementation.

The chief procurement official of each operating agency will develop guidelines for, and participate in, the receipt, proper handling, and disposition of unsolicited proposals from all

sources.

Subpart 3-4.54-Procurement Clear

ance of Audiovisual Materials and Contracts for Public Affairs Services

§3-4.5400 Scope of subpart.

This subpart provides for prior clearances and methods of contracting for the procurement of audiovisual materials and/or contracts for public affairs services in excess of $5,000. Chapter 1-121 of the General Administration Manual sets forth supplementary

requirements for review of audiovisual materials intended for use with the public contracts for public affairs services. The term "audiovisual materials," as used in this subpart, refers not only to the completed product but also to all steps and techniques leading to the realization of the completed product. The term includes motion pictures, video tapes, slide shows, film strips, audio recordings, exhibitry, or similar materials; design, layout, preparation of scripts, filming or taping, sound recording, editing, fabrication, or other activities leading to the acquisition or creation of audiovisual materials regardless of intended use.

[42 FR 2684, Jan. 13, 1977]

§ 3-4.5401 Responsibility.

No procurement action for acquisition of audiovisual materials or the contracting for public affairs services shall be initiated without first obtaining proper clearances and approvals set forth below. The Office of the Assistant Secretary for Public Affairs, Office of the Secretary (ASPA-OS), has been designated as the office of primary responsibility for review and approval of all audiovisual materials and contracts for public affairs services. Requests for the procurement of audiovisual materials and contracts for public affairs services shall be submitted to ASPA-OS for review and approval (or disapproval).

[39 FR 9439, Mar. 11, 1974]

§ 3-4.5402 Clearance for procurement.

(a) Clearances shall apply to contracts dealing, in whole or in part, with development of audiovisual materials whether for public information, education or training purposes and to contracts for public affairs services.

(b) All requests for approval of audiovisual materials and contracts for public affairs services shall be submitted on a HEW Form 524A, Request for Audiovisual Material, or a Form 524B, Request for Public Affairs Services Contract. Requests for audiovisual material or public affairs services contract will be submitted to ASPA-OS for review and approval prior to initiating any procurement action.