(c) When the demand for a restricted product cannot be resolved by the substitution of a satisfactory item, the request shall be processed in the same manner as a deviation (see § 3-1.108). [36 F.R. 19586, Oct. 8, 1971]

§ 3-1.353 Treatment of technical data in contract proposals.

(a) General. Technical data (such as plans, designs, suggestions, improvements or concepts) acquired by HEW may have been obtained under conditions which restrict HEW's right to use the data. Therefore, care must be taken when considering the use of technical data to assure that HEW has sufficient rights to use the data in the manner desired. One of the principal ways in which HEW receives technical data is by means of proposals. HEW has a continuing interest in receiving and evaluating proposals which are pertinent to its potential needs in carrying out its objectives and goals. Some proposals are offered and received under conditions which may prevent HEW from using the technical data contained therein other than for evaluation purposes. Proposals received by HEW are of two typessolicited and unsolicited. The policies and procedures for handling unsolicited proposals are set forth in Subpart 3-4.52.

(b) Definitions-(1) Unsolicited proposal. Essentially, an unsolicited proposal is a written offer to perform work which does not result from a formal written request for proposals or quotations. See Subpart 3-4.5201 for a definitive definition.

(2) Solicited proposal. A solicited proposal is a written offer to perform work which results from a formal written request for proposals or quotations.

(c) Policy for unsolicited proposals. It is the policy of HEW to use technical data included in unsolicited proposals for evaluation purposes only. However, due to the administrative problems involved in handling the large number of unsolicited proposals received, the Government cannot assume liability for disclosure or use of such technical data unless it is marked by the offeror in accordance with the legend set forth below. The Government assumes no liability for disclosure or use of unmarked technical data and may use or disclose the data for any purpose and may consider that the proposal was not submitted in confidence and therefore releasable under the Freedom of Information Act (5 U.S.C. 552).

Each proposal containing technical data, which the offeror intends to be used by HEW for evaluation purposes only, should be marked on the cover sheet with the following legend and shall specify the pages of the proposal to be restricted in accordance with the conditions of the legend:

of

Technical data contained in pages this proposal shall not be used or disclosed, except for evaluation purposes: Provided, That if a contract is awarded to this offeror as a result of or in connection with the submission of this proposal, the Government shall have the right to use or disclose this technical data to the extent provided in the contract. This restriction does not limit the Government's right to use or disclose technical data obtained from another source without restriction.

Contracting officers and other Government personnel shall not refuse to consider any proposal merely because the proposal is restrictively marked. Proposals, or portions thereof, so marked shall be used only for evaluation and shall not otherwise be used or disclosed without the written permission of the offeror except under the conditions provided in the legend. In the event an unsolicited proposal is submitted with more restrictive conditions than those provided in the legend above, HEW may be unable to consider it, in which case the offeror should be SO advised, see § 3-1.353 (f) (2).

(d) Policy for solicited proposals. (1) HEW recognizes that requests for proposals may require the offeror, including his subcontractor(s), if any, to submit technical data which the offeror or his subcontractor(s) does not want used or disclosed for any purpose other than for evaluation of the proposal. Each proposal containing technical data which the offeror or his proposed subcontractor(s) desires to restrict shall be marked on the cover sheet by the offeror with the legend set forth in subparagraph (2) of this paragraph. Proposals, or portions thereof, so marked shall be used only for evaluation and shall not otherwise be used or disclosed without the written permission of the offeror except under the conditions provided in the legend. The Government assumes no liability for disclosure or use of unmarked technical data in solicited proposals and may use or disclose the data for any purpose and may consider that the proposal was not submitted in confidence and therefore releasable under the Freedom of Information Act (5 U.S.C. 552).

(2) The following provision shall be inserted in the RFP:

The proposal submitted in response to this request may contain technical data which the offeror or his subcontractor(s) does not want used or disclosed for any purpose other than for evaluation of the proposal. The use and disclosure of any such technical data may be so restricted: Provided, The offeror marks the cover sheet of the proposal with the following legend, specifying the pages of the proposal which are to be restricted in accordance with the conditions of the legend:

Technical data contained in pages

of this proposal shall not be used or disclosed, except for evaluation purposes: Provided, That if a contract is awarded to this offeror as a result of or in connection with the submission of this proposal, the Government shall have the right to use or disclose this technical data to the extent provided in the contract. This restriction does not limit the Government's right to use or disclose technical data obtained from another source without restriction.

The Government assumes no liability for disclosure or use of unmarked technical data and may use or disclose the data for any purpose and may consider that the proposal was not submitted in confidence and therefore releasable under the Freedom of Information Act (5 U.S.C. 552).

Proposals submitted with restrictive legends or statements differing from the above legend will be treated under the terms of the above legend.

(e) HEW notice for handling proposals. In order that both solicited and unsolicited proposals are handled in accordance with the policies set forth in paragraphs (c) and (d) of this section, the following notice shall be affixed to each solicited and unsolicited proposal which is to be disclosed outside the Government for evaluation purposes in accordance with the policies and procedures set forth in paragraph (f) of this section. Application of the following notice in no way alters any obligation of the Government or diminishes any rights to use disclose technical data or business information.

or

HEW NOTICE FOR HANDLING PROPOSALS This proposal shall be used or duplicated only for evaluation purposes and this notice shall be applied to any reproduction or abstract thereof.

Disclosure of this proposal outside the Government for evaluation purposes shall not be made unless the polic" and procedures prescribed by HEW Procurement Regulation § 3-1.353 (f) (2), including the requirements for approval and for an arrangement with the outside evaluator prior to disclosure, are followed.

The restrictions contained in this notice do not apply to technical data or business information obtained from another source without restriction.

(f) Disclosure of solicited and unsolicited proposals outside the Government (1) Policy. It is the policy of HEW to have proposals evaluated by the most competent technical and management sources available in the Government. However, in processing a proposal for evaluation, HEW may find in some instances that it is necessary to disclose a proposal outside the Government to meet its evaluation needs. Such outside evaluation may be made provided the requirements in subparagraphs (2) and (3) of this paragraph are met.

(2) Approval. Decisions to disclose proposals outside the Government for evaluation purposes shall be made by the chief official of the requiring organization having programmatic responsibility for the procurement, after consultation with the contracting officer for the procuring activity, and in accordance with agency procedures. (Copies of any agency implementing procedures shall be sent to the Director, Office of Procurement and Materiel Management (OASAM).) The decision to disclose either a solicited or unsolicited proposal outside the Government for the purpose of obtaining an evaluation shall take into consideration avoidance of organizational conflicts of interest and the competitive relationship between the originator of the proposal and the prospective evaluator.

(3) Evaluation of unsolicited proposals. Should an unsolicited proposal under consideration contain a restrictive use statement or legend other than the legend prescribed in paragraph (c) of this section, the legend or statement should be reviewed to assure that it does not preclude HEW from disclosing the proposal outside the Government for purposes of obtaining an evaluation. In the event HEW is so precluded and an outside evaluation is nevertheless desired, the offeror should be advised that HEW may be unable to consider the proposal unless the offeror consents in writing to having the proposal evaluated outside the Government.

(4) Conditions of outside evaluation. Where it is determined to disclose a proposal outside the Government pursuant to subparagraph (2) of this paragraph, the following conditions, or similar appropriate conditions for the treatment of the proposal, shall be included in the

agreement with the evaluator prior to such disclosure. Also, review should be made to assure that the notice required by paragraph (e) of this section is affixed to the proposal before it is disclosed to the evaluator.

CONDITIONS FOR EVALUATING PROPOSALS The evaluator agrees to use the technical data and business information contained in the proposal only for evaluation purposes.

This requirement does not apply to technical data or business information obtained from another source without restriction.

Any notice or legend placed on the proposal by either HEW or the originator of the proposal shall be applied to any reproduction or abstract thereof. Upon completion of the evaluation, the evaluator shall return all copies of the proposal and abstracts, if any, to the HEW once which initially furnished the proposal for evaluation.

Unless authorized by the HEW initiating ofce, the evaluator shall not contact the originator of the proposal concerning any aspects of its contents.

The evaluator will be obligated to obtain commitments from its employees in order to affect the purposes of these conditions.

(g) Evaluation and testing of equipment and material. Should evaluation of a proposal include the evaluation and testing of equipment or material submitted with the proposal, neither the Government nor any person acting on behalf of the Government assumes any liability to the submitter of the proposal, or any person acting on his behalf, in connection with any damage, loss, injury, or destruction resulting from such evaluation, and testing.

[37 FR 16397, Aug. 12, 1972]

§ 3-1.354 Contracts conditioned upon availability of funds.

(a) General. In those situations where it is necessary to initiate a procurement properly chargeable to funds of the new fiscal year prior to the availability of such funds, contracts may be entered into conditioned upon the availability of funds. In these cases, the supplies or services shall not be accepted until the funds are available to the contracting officer for the procurement and until the contracting officer has given notice, confirmed in writing, to the contractor of the availability of funds. Appropriate records shall be maintained to ensure adequate control of funds.

(b) Limitations. Contracts conditioned upon the availability of funds shall be used only for operation, maintenance and continuing services (e.g., janitorial services, garbage removal, utilities, rent

als) which are necessary for normal operation and for which the Congress consistently appropriates funds.

(c) Contract clause. The following clause shall be inserted in all solicitations and resultant contracts:

AVAILABILITY OF FUNDS

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 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. [38 FR 1392, Jan. 12, 1973] § 3-1.355

Federal Reports Act of 1942.

(a) General. The Federal Reports Act of 1942 (44 U.S.C. 3501 et seq.), prohibits the conducting or sponsoring of the collection of information, upon identical items, from 10 or more persons (other than Federal employees considered as such), unless the approval of the Director, Office of Management and Budget, is obtained in advance of the adoption or revision of any plans or forms for such collection.

(b) Approvals. Whenever possible, data requirements shall be defined, cleared within HEW, and approval obtained from OMB prior to the issuance of the solicitation. The advice of the cognizant reports clearance officer shall be sought on all questions pertaining to required clearances. (See part 10 of the General Administration Manual for a detailed discussion of Federal Reports Act requirements and related directives.)

(c) Required clauses. Solicitations and resulting contracts which provide for the collection of information as described in (a) of this § 3-1.355, shall contain the clause set forth in § 3-7.5010 of this chapter and the appropriate clause set forth in § 3-7.5011 of this chapter. [38 FR 13647, May 24, 1973] Subpart 3-1.4-Procurement Responsibility and Authority

SOURCE: The provisions of this Subpart 31.4 appear at 36 F.R. 22981, Dec. 2, 1971, unless otherwise noted.

of an effective and efficient procurement program. Adequate controls shall be established to assure compliance with applicable laws, regulations, procedures, and the dictates of good management practices. Periodic reviews shall be conducted and evaluated by qualified personnel, preferably assigned to positions other than in the procurement activity being reviewed, to determine the extent of adherence to prescribed policies and regulations, and to detect a need for guidance and/or training. The Procurement and Materiel Checklist, Form HEW 552, available through normal distribution channels, shall be used to assist in conducting such reviews.

§ 3-1.403 Requirements to be met before entering into contracts.

(a) No contract shall be entered into, modified, or terminated unless all required reviews, clearances, or approvals have been obtained and all applicable requirements of law, the FPR, the HEWPR, and other applicable regulations have been met.

(b) In addition to the requirements specified in paragraph (a) of this section, no negotiated contract shall be entered into until the determinations and findings required by Parts 1-3 and 3-3 of this title with respect to the circumstances justifying negotiation and use of any special method of contracting have been made. Negotiations, in any form, will not begin with prospective contractors until all required determinations and findings authorizing such negotiations have been made.

§ 3-1.404 Selection, designation, and termination of designation of contracting officers.

The selection, designation, and termination of designation of contracting officers shall be made in accordance with operating

agency procedures. Such agency procedures shall conform to the provisions of § 1-1.404 and this § 3-1.404. § 3-1.404-1 Selection.

Selection of candidates for contracting officer positions shall be based on the following qualifications:

(a) Practical experience in Government or commercial procurement organizations;

(b) Knowledge of procurement law, FPR, HEWPR, other regulations affecting procurement, and procurement practices;

(c) Training in Government or other procurement schools and courses; and

(d) U.S. Civil Service Standards, Contract and Procurement Series, GS-1102, and Purchasing Series, GS-1105.

§ 3-1.404-2 Designation.

(a) Except for those individuals delegated procurement authority by § 3-75.101, designation of contracting officers shall be made in writing by the appointing official in accordance with HEW General Administration Manual Chapter 8-75. Designation of an individual by name is the preferred method of appointing contracting officers. Appointments, either by individual or position, shall include, or make specific reference to, any limitations on the scope of authority to be exercised by the contracting officer other than those contained in the FPR and the HEWPR. A file shall be maintained containing all documents necessary to support the appointment of each contracting officer.

(b) A DHEW Certificate of Appointment suitable for use in the appointment of Department contracting officers is available on an optional basis on the part of each agency. When utilized, this certificate is to be used to identify employees of the Department who have been delegated the authority to obligate the Government by execution of formal two signature contracting documents and/or small purchase orders. The certificate is not to be issued to employees where delegation of authority is restricted to procurement from Mandatory sources of supply (FSS, GSA, Perry Point, Md., DOD, etc.).

(c) Requests for certificates are to be made to the Director, Division of Procurement Policy and Regulations Development, OGPM, OASAM. Requests shall contain the name, current grade, location and extent of authority to be delegated.

[36 FR 22981, Dec. 2, 1971, as amended at 40 FR 29715, July 15, 1975] § 3-1.404-3

tion.

Termination of designa

(a) Automatic termination. Unless the appointment of a contracting officer contains provision for automatic termination, the appointment shall remain effective, unless sooner revoked, until the contracting officer is reassigned or his employment is terminated.

(b) Revocation. The appointment of a contracting officer may be revoked at any

time by the appointing authority but no such revocation shall operate retroactively. Revocation of the appointment shall be made by letter, reading substantially as follows:

Date

Subject: Termination of Appointment as Contracting Officer.

To: Name__

Your appointment as Contracting Officer is hereby terminated effective 19--.

Signature and Title of
Appointing Authority.

83-1.405 Ratification of unauthorized contract awards.

(a) The Government is not bound by agreements or contractual commitments made to prospective contractors by persons to whom procurement authority has not been delegated. Such unauthorized acts may be in violation of the Federal Property and Administrative Services Act, other Federal laws, the FPR, the HEWPR, and good procurement practice; e.g., certain requirements of law and regulation necessary for the proper establishment of a contractual obligation may not be met; i.e., certification of the availability of funds, determinations and findings, competition of sources, determination of contractor responsibility, certification of current pricing data, price/cost analysis, administrative approvals, negotiations of appropriate contract clauses, etc.

(b) Contracting officers shall not ratify contractual commitments made by other personnel of HEW without the prior approval of the head of the procuring activity or the Deputy Assistant Secretary for Administration in cases involving the Office of the Secretary. This approval authority shall not be redelegated. [36 FR 22981, Dec. 2, 1971, as amended at 37 FR 16080, Aug. 10, 1972]

§ 3-1.405-50 Ratification procedure.

Requests received by contracting offcers for ratification of commitments made by personnel lacking contracting authority shall be procesed as follows:

(a) The individual who made the unauthorized contractual commitment shall furnish the contracting officer all records and documents concerning the commitment and a complete, written statement of facts, including, but not limited to, a statement as to why the procurement office was not utilized, why the proposed contractor was selected and a list of

other sources considered, description of work to be performed or products to be furnished, estimated or agreed contract price, citation of appropriation available, and a statement of whether the contractor has commenced performance.

(b) The contracting officer will review the file and forward it to the head of the procuring activity or the Deputy Assistant Secretary for Administration (see § 3-1.405(b)) with any comments or information which should be considered in evaluation of the request for ratification. If legal review is desirable, the head of the procuring activity or the Deputy Assistant Secretary for Administration will coordinate the request for ratification with the Office of General Counsel, OS (GBA).

(c) If ratification is authorized by the head of the procuring activity or Deputy Assistant Secretary for Administration, the file will be returned to the contracting officer for issuance of a purchase order or contract as appropriate.

(d) Heads of the procuring activities or their designees, the Director, Office of Administrative Services, OS, and Director, Office of Regional and Community Development, or their designees, will report quarterly number and dollar value of (1) requests for ratifications received and (2) ratifications authorized during each calendar quarter. Reports shall be submitted in an original and one copy to the Director of Procurement and Material Management, OASAM, to arrive no later than 30 calendar days after the close of each reporting period. Negative reports, where applicable, are required. [37 FR 23272, Nov. 1, 1972]

§ 3-1.451 § 3-1.452

[Reserved]

Responsibility of other Government personnel.

§ 3-1.452-1 General.

(a) Responsibility for the decision of what to buy and when to buy rests with program and certain staff offices in the operating agencies and the Office of the Secretary. Responsibility for determining how to buy, the conduct of the buying process, and execution of the contract rests with the procurement activity, the contracting officer in particular.

(b) Personnel responsible for making decisions to buy should maintain a close and continuous relationship with their procurement activity to ensure that personnel are made aware of contemplated procurement actions. This will be mutu