and instructions to the Army Air Forces Liaison Officer for clearance. If the Army Air Forces disagree with the proposal in so far as it would be applicable to them, the matter will be submitted to the Under Secretary of War for decision. d. The Commanding General, Army Service Forces, will furnish the Commanding General, Army Air Forces, with such number of copies of said orders, directives, regulations and instructions as the latter desires for redistribution to agencies under his jurisdiction. 3. This memorandum will supersede my communication dated 9 April 1942 to The Commanding General, Matériel Command, Army Air Forces and The Commanding General, Services of Supply, on the same subject. [The superseded memorandum was formerly set forth in this paragraph (d)] ROBERT P. PATTERSON, [As amended by W.D. Proc. Regs., C 25, Sept. 24, 1943, 8 F.R. 13791] (h) Delegation to Chief Counsel and Chief, Legal Branch to approve contract forms. Under date of June 18, 1943, the following memorandum was issued: Memorandum for: Chief Counsel, Purchases Division, Chief, Legal Branch, Purchases Division Subject: Delegation of Authority to Approve Contract Forms and Deviations from Approved Forms. The authority delegated to the Director, Purchases Division, by the Commanding General, Services of Supply, dated September 15, 1942 and the authority delegated to me by the Under Secretary of War, dated September 15, 1942 (in respect of matters relating to the Army Air Forces) to act for the Secretary of War or the Under Secretary of War in approving War Department contract forms and deviations from approved forms is hereby further delegated to the Chief Counsel, Purchases Division, and to the Chief, Legal Branch, Purchases Division, Army Service Forces, or either of them, and to any person who for the time being may be acting in either capacity. ALBERT J. BROWNING, [As amended by W.D. Proc. Regs., C 20, July 6, 1943, 8 F.R. 9908] [Preceding paragraph, in small type, superseded by following paragraph during period covered by this Supplement] (h) Delegation of authority to Legal Assistant to Director of Matériel and to Chief, Legal Branch to approve contract forms. Under date of 12 November 1943 the following memorandum was issued: Memorandum for: Legal Assistant to the Director of Matériel and to the Chief, Legal Branch, Director of Matériel. Subject: Delegation of Authority to Approve Contract Forms and Deviations from Approved Forms. The authority delegated to the Director, Purchases Division, by the Commanding General, Services of Supply, dated September 15, 1942 and the authority delegated to me by the Under Secretary of War, dated September 15, 1942 (in respect of matters relating to the Army Air Forces) to act for the Secretary of War or the Under Secretary of War in approving War Department contract forms and deviations from approved forms is hereby further delegated to the Legal Assistant to the Director of Matériel, and to the Chief, Legal Branch, Director of Matériel, Army Service Forces, or either of them, and to any person who for the time being may be acting in either capacity. ALBERT J. BROWNING, [As amended by W.D. Proc. Regs., С 29, Dec. 17, 1943, 8 F.R. 17464] (i) Authority delegated by these procurement regulations. These regulations to the extent, and only to the extent, that they actually confer authority upon the chiefs of the technical services and other officers or civilian officials of the War Department to exercise power to enter into contracts and into amendments or modifications of contracts heretofore or hereafter made and to make advance, progress and other payments thereon shall constitute a redelegation by the Commanding General, Army Service Forces of the authority delegated to him as set forth in § 81.107(e), and by the Special Representative of the Under Secretary of War of the authority delegated to him, as set forth in § 81.107(g). The authority granted as provided in the preceding sentence, of course, does not dispense with the necessity of obtaining any approval expressly specified in any paragraph of these procurement regulations (see e. g. § 81.315(a)). Authority conferred upon the chiefs of the supply services under any paragraph of these procurement regulations may be redelegated (with or without power of further redelegation) to such officer or officers or civilian official or officials as the chiefs of the technical services severally may direct, whether or not express mention of the powers of redelegation is made in § 81.108 Applicability of these procurement regulations (a) Preliminary definitions. (1) The term "procurement activities", as used in paragraph (b) of this section, includes all such activities except the acquisition and disposal of real estate so far as the latter are governed and regulated by AR 100-60, 100-61, 100-62 (§§ 81.1 and 81.16a) and AR 100-63.' The term comprises, but is not necessarily limited to, the procurement of supplies, material and equipment and the procurement of construction work, including that on rivers and harbors. (2) The term "Army agencies", as used in paragraph (b) of this section, includes all personnel of the Army, except as indicated in paragraph (f) of this section. In particular, it includes the agencies referred to in paragraphs (d) and (e) of this section. (3) The term "appropriated funds", as used in paragraph (b) of this section, comprises all such funds, including such funds allocated to, as distinguished from appropriated to, the War Department; but does not include organizational, unit or similar funds. (b) Applicability. These procurement regulations are applicable to all procurement activities carried on by Army agencies with appropriated funds. If a project involved both a procurement activity and acquisition or disposal of real estate governed and regulated by the Army regulations referred to in paragraph (a) above, these procurement regulations are applicable so far as the procurement activity is concerned and are inapplicable so far as the acquisition or disposal of real estate is concerned. (c) Technical services and supply services. Pursuant to Circular No. 30, Head 1 Administrative regulations of the War Department pertaining to the disposal of real estate. quarters Army Service Forces, 15 May 1943, the designation of "supply services" is changed to "technical services". This change is being made in the procurement regulations as occasion arises to reprint pages for other reasons. In the meantime, the term "supply services" should be read as "technical services." (d) Army Air Forces. (1) The regulations have been issued with the approval of the Army Air Forces, and shall, unless otherwise specifically indicated, apply to the Army Air Forces. (2) Whenever used herein, unless otherwise specifically indicated, the term "technical services" shall be deemed to include the Army Air Forces, and the term "chiefs of the technical services" shall be deemed to include the Commanding General, Army Air Forces. Likewise, the term "Director, Purchases Division, Headquarters, Army Service Forces," when used in connection with action to be taken in respect of the Army Air Forces, shall, unless otherwise specifically indicated, be deemed to refer to the special representative of the Under Secretary of War designated for that purpose. (3) Except as specifically otherwise provided, all communications to the Army Air Forces or to the Commanding General, Army Air Forces, relating to procurement, should be addressed to the attention of the Procurement Branch, Matériel Division, Office of the Assistant Chief of Air Staff, Matériel, Maintenance and Distribution. [As amended by W.D. Proc. Regs., C 21 and 22, Aug. 13 and 14, 1943, 8 F.R. 12048] (e) Definition of terms-(1) Technical services and supply services. Pursuant to Circular No. 30, Army Service Forces, May 15, 1943, the designation of "supply services" is changed to "technical services." This change is being made in the Procurement Regulations as occasion arises to reprint pages for other reasons. In the meantime, the term "supply services" should be read as "technical services". (2) Service commands. These regulations are applicable to the procurement activities of the service commands. Where procurement is accomplished by a service command at the direction of the chief of a technical service or his duly authorized representative, the directions will contain references to the applicable paragraphs of the procurement regulations and will also contain supplementary instructions where appropriate. In such a case, for the purposes of these regulations, the procurement shall be regarded as procurement by the technical service concerned and the contract will be regarded as a contract of that technical service. In all other cases, the service command accomplishing the procurement shall act independently of any technical service and the term "technical service" and the term "service", as used in these regulations, shall be deemed to refer to the service commands and the term "chiefs of technical services" and "chiefs of services" shall be deemed to refer to the Commanding Generals of the Service Commands. In connection with this subparagraph (2) see subparagraph (1) above. [As amended by W.D. Proc. Regs., C 20, July 6, 1943, 8 F.R. 9909] [Preceding paragraph, in small type, superseded by following paragraph during period covered by this Supplement] (e) Service commands. These regulations are applicable to the procurement activities of the service commands. Where procurement is accomplished by a service command at the direction of the chief of a technical service or his duly authorized representative, the directions will contain references to the applicable paragraphs of the procurement regulations and will also contain supplementary instructions where appropriate. In such a case, for the purposes of these regulations, the procurement shall be regarded as procurement by the technical service concerned and the contract will be regarded as a contract of that technical service. In all other cases, the service command accomplishing the procurement shall act independently of any technical service and the term "technical service" and the term "service", as used in these regulations, shall be deemed to refer to the service commands and the term "chiefs of technical services" and "chiefs of services" shall be deemed to refer to the commanding generals of the service commands. In connection with this paragraph see paragraph (c) of this section. (f) Procurement and contracting authority of commanding officers outside continental United States. In general, commanding officers in charge of United States armed forces outside the continental United States and its territories and possessions including Alaska are not required, in connection with the procurement of supplies necessary to accomplish the mission confided in them, to comply with the procurement regulations or any other regulations, circulars or instructions or with any provisions or restrictions of the laws of the United States which may be applicable within the United States or any territory or possession thereof. This matter is more fully treated in section I of Circular No. 21, War Department, 1943. Likewise, commanding officers in charge of United States Armed Forces outside the continental United States but within the territories or possessions of the United States including Alaska, who are responsible directly to the War Department (that is, the chief of staff), in connection with the procurement of supplies necessary to the accomplishment of the mission confided in them are authorized to disregard procurement regulations and other War Department regulations, restrictions, circulars and instructions, and when they find that to do so will facilitate the prosecution of the war, they are authorized to disregard the provisions of law relating to procurement; all subject however to (1) Title II of the First War Powers Act, 1941, (2) the restrictive provisions contained in Executive Order No. 9001 and (3) any law approved after December 18, 1941. This matter is more fully set forth in section II of Circular No. 21, War Department, 1943. [As amended by W.D. Proc. Regs., C. 21 and 22, Aug. 13 and 14, 1943, 8 F.R. 12048] (g) Procurement within the United States for armed forces abroad. It is to be noted that the provisions of Circular No. 21, War Department, 1943, referred to in paragraph (f) have no application to procurement within the United States for armed forces abroad. [As added by W.D. Proc. Regs., C 17, May 6, 1943, 8 F.R. 7526] [Preceding paragraph, in small type, superseded by following paragraph during period covered by this Supplement] (g) Procurement within the United States for armed forces abroad. It is to be noted that the provisions of Circular No. 21, War Department, 1943, referred to in paragraph (f) above have no application to procurement within the United States for armed forces abroad. [As amended by W.D. Proc. Regs., C 21 and 22, Aug. 13 and 14, 1943, 8 F.R. 12048] PROPOSALS FOR LEGISLATIVE ACTION AND FOR EXECUTIVE ORDERS AFFECTING PROCUREMENT § 81.115 Legislative Division, Office of the Under Secretary of War. With the approval and by the authority of the Under Secretary of War, the Legislative Division, Office of the Under Secretary of War, is designated as the agency charged with the coordination within that Office, the Army Service Forces and the Army Air Forces, of all legislative matters affecting procurement or related functions. [W.D. Proc. Regs., C 21 and 22, Aug. 13 and 14, 1943, 8 F.R. 12048] §81.116 Proposals for legislative action affecting procurement. (a) Except as specifically otherwise provided in paragraph (b) of this section, all proposals for legislative action affecting procurement or related functions, originating from any source whatsoever, will be referred to the Legislative Division, Office of the Under Secretary of War, for coordination. (b) All such proposals, other than proposals for Executive Orders, originating from sources outside the Office of the Under Secretary of War, the Army Service Forces or the Army Air Forces, will be referred to the Legal Branch, Purchases Division, Headquarters, Army Service Forces. The Legislative Section of that Branch will promptly review such proposals to determine which are of sufficient importance to the Office of the Under Secretary of War, the Army Service Forces, Army Air Forces, or any of them to warrant further consideration. Such of the proposals as warrant such consideration will be referred directly to the Legislative Division, Office of the Under Secretary of War, for coordination. [W.D. Proc. Regs., C 21 and 22, Aug. 13 and 14, 1943, 8 F.R. 12048] §81.117 Action of Legislative Division. The Legislative Division, Office of the Under Secretary of War, will, with respect to such proposals originating within the Office of the Under Secretary of War, the Army Service Forces, or the Army Air Forces: (a) Take all necessary action to secure the views of those individuals and elements within the Office of the Under Secretary of War, the Army Service Forces and the Army Air Forces, whose responsibilities would be affected by such legislative action. (b) Refer any questions regarding the form of the proposed legislative action to the Legal Branch, Purchases Division, Headquarters, Army Service Forces, for consideration and report. (c) Make all necessary arrangements for proper coordination with other Government departments and agencies whose functions would be affected. (d) If it is determined by proper authority to initiate such legislative action, coordinate the matter with the Legislative and Liaison Division, War Department. (e) Take any other necessary or appropriate action in connection therewith. With respect to such proposals originating from sources outside the Office of the Under Secretary of War, the Army Service Forces, or the Army Air Forces, Legislative Division, Office of the Under Secretary of War will, upon receipt of such proposals, take the action described in paragraphs (a), (c) and (e) above. [W.D. Proc. Regs., C 21 and 22, Aug. 13 and 14, 1943, 8 F.R. 12048, as amended by C 25, Sept. 24, 1943, 8 F.R. 13791] NOTE: The words "Matériel Command" were deleted preceding the words "Army Air Forces," by W.D. Proc. Regs., C 25, Sept. 24, 1943, 8 F.R. 13791. § 81.118 Congressional hearings. Arrangements for appropriate representation from the Office of the Under Secretary of War, the Army Service Forces and the Army Air Forces, at Congressional hearings on legislative proposals affecting procurement or related functions will be made through the Legislative Division, Office of the Under Secretary of War. [W.D. Proc. Regs., C 21 and 22, Aug. 13 and 14, 1943, 8 F.R. 12049] GENERAL PURCHASE POLICIES CONTRACT PLACEMENT $81.223 Factors governing placement of contracts. (a) Ability to perform. (1) Primary emphasis shall be placed upon securing performance or deliveries at the time, in the quantity, and of the quality required by the war program. In addition an effort should be made to have for each item of supply and equipment at least two producers so located as not to be subject to the same hazard. The effort to be made shall be such as is deemed reasonable by the chief of the technical service concerned. [As amended by W.D. Proc. Regs., C 20, July 6, 1943, 8 F.R. 9908] (2) Attention is called to the provisions of § 81.352 (b) which authorizes the omission of the word "unforeseeable" in the delaysdamages article. When bids are being solicited, informally or otherwise, and there exists some foreseeable and probable cause of delay which would be beyond the control of the contractor, care should be exercised in evaluating the various bids submitted. It is possible under those circumstances for contractor "A" to submit a bid which requires performance within a time schedule which could not possibly be adhered to if such cause of delay materialized. Under for delays-damages clause, as modified in accordance with § 81.352 (b), the failure to perform within the time schedule might well be construed as an excusable delay. Contractor "B", although capable of performing with as great despatch as "A" may allow for the probable cause of delay, and submit a bid calling for deliveries at a date later than that offered by "A". In evaluating the two bids, the fact that "A" has not made allowance for the probable cause of delay should be taken into account. (As amended by W.D. Proc. Regs., C 21 and 22, Aug. 13 and 14, 1943, 8 F.R. 12049] (d) Labor shortage areas. * (4) Exceptions. The restrictions stated in this paragraph (d) do not apply to the placing of contracts: (1) With firms which currently employ less than 100 wage earners and which will not employ more than 100 wage earners during the performance of the contract; or (ii) With originating manufacturers for a newly developed article in accordance with §81.224. [As amended by ASF Memo S 5145-43, July 28, 1943, 8 F.R. 10972] NOTE: The text of paragraph (d) (4) (1) and (11) appearing in W.D. Proc. Regs. C 21 and 22, Aug. 13 and 14, 1943, 8 F.R. 12049, is identical with that set forth above. * (f) Subcontracting in areas. * labor shortage (1) Prime contractors holding the bulk of War Department contracts have received a request from the Under Secretary of War to apply principles similar to those described in paragraphs (c) to (e) of this section in placing their subcontracts for the fabrication of products required by their prime contracts. When new prime contracts which may involve subcontracting are made, the prime contractors will be advised of these principles by contracting officers and will be strongly urged to apply them in placing subcontracts. (2) The restrictions relating to Group I, II and III areas are not intended to apply to existing subcontract relationships (particularly for the production of difficult or complicated items) where their application might tend to delay or interfere with production. Moreover, prime contractors will not be expected, in placing recurring subcontracts under a particular prime contract, to give effect to changes in the classification of labor supply areas occurring after the execution of the prime contract, where to do so would decrease the efficiency of subcontracting. (3) Many prime contractors are regularly receiving the monthly classification of labor market areas issued by the War Manpower Commission. Arrangements may be made to have additional prime contractors supplied with them by communicating directly (1) Exceptions. Upon specific request the Director, Purchases Division, Headquarters, Army Service Forces, may grant authority to depart from the policies stated in §§ 81.220 to 81.227. Requests for such authority stating the reasons therefor will be forwarded to the Smaller War Plants Branch, Purchases Division, Headquarters, Army Service Forces. One such specific exemption granted to The Quartermaster General is referred to in QMS par. 2-1-9 (5-15-43). NOTE: Paragraph (1), formerly paragraph (h), was amended to read as set forth above, by W.D. Proc. Regs., C 19, June 4, 1943, 8 F.R. 8918. [Former section, as amended above, in small type, superseded by following section during period covered by this Supplement] § 81.223 Factors governing placement of contracts. The selection of a contractor for a particular contract from among the available qualified producers depends on a number of factors. In making such selections effect must be given to various policies expressed by the Office of War Mobilization, by the War Production Board (see Directive No. 2, 18 September 1943), by the War Manpower Commission in its directives, and by Congress, as in the Smaller War Plants Act. These policies, their relation and relative importance are discussed in the following paragraphs, which are applicable both to the placement of new business and to the revision or reduction of existing programs: (a) West Coast manpower program. The Office of War Mobilization has announced a West Coast Manpower Program effective 15 September 1943 to deal with the acute labor shortage problem in certain localities in that area. The War Production Board on 5 October 1943 announced a program dealing with the placement of contracts in the States of Washington, Oregon and California. Directives will be issued from time to time to establish War Department procedures for complying with these and any similar programs that may be adopted for other areas. As of this date (15 October 1943) immediate issuance of such a directive dealing with the States of Washington, Oregon and Cali |