vested in the Commanding General, U.S. Army Materiel Command, who has assigned the responsibility to the Director of Requirements and Procurement of that command. The Director of Requirements and Procurement, U.S. Army Materiel Command, assigns responsibility for initiating standardization action, according to groups or categories of candidate items, to a head of procuring activity who is then responsible within the assigned category for

(1) Initiating requests for standardization approval;

determinations

and

(2) Initiating findings for authority to negotiate after, or simultaneous with, standardization approval;

(3) The biennial review required by §3.213-2(e) of this title; and

(4) Reporting the results of the biennial review with data supporting any determination made that the standardization should be continued, revised, or canceled, as the case may be.

(c) The head of procuring activity assigned a category of candidate items for standardization may select any item in the category which he believes will meet the criteria in § 3.213 of this title and in §§ 593.213-593.213-5 and may initiate a request for approval of standardization in accordance with § 593.306-54. If the facts appear to justify standardization, the head of procuring activity shall accumulate data concerning the makes and models of the item in the Army supply system and due in from procurement. Stocks on hand and due in from procurement of any make or model proposed for standardization shall constitute a significant portion, i.e. approximately 15 percent or more, of the assets of the item in the Army supply system. If the Army provides maintenance and repair parts in support of the Air Force, the combined assets of the two Departments may be considered; however, assets for the Military Assistance Program and for use exclusively at continental U.S. installations or activities, such as for repairs and utilities use, shall not be considered in selection of makes and models for initial standardization action.

(d) Requirements for the Military Assistance Program may be included in a purchase under this authority when—

(1) The Army's responsibility with respect to the Military Assistance Program equipment extends to replacement of parts;

(2) The Military Assistance Program requirements alone do not comprise a sufficient quantity for economical procurement; or

(3) Other circumstances set forth in the data supporting the determination to negotiate demonstrate the impracticability of advertising for the requirement.

(e) When redesign or redesignation of a standardized model will not affect interchangeability of parts of the new and old models, the standardization flie of the cognizant head of procuring activity and the Director of Requirements and Procurement, US. Army Materiel Command, shall reflect a revision of the original standardization approval, supported by a determination of the head of procuring activity that cancellation of standardization is not warranted. When, for any reason, the head of procuring activity or the Director of Requirements and Procurement conclude that an approved standardization should be canceled, written notification shall be given promptly to the addressee in 591.150 (b) (6) of this chapter (see § 591.150(d)). Consideration shall be given to cancellation when, after standardization, the quantity in the Army supply system of one or more of the selected suppliers falls below 15 percent, but cancellation is not required unless it reasonably appears that in future negotiated procurements such supplier(s) will not be able to offer effective competition. Nevertheless, when the quantity of one or more of the selected supplies falls below 15 percent, standardization shall not be continued beyond one procurement except for the most compelling reasons.

[34 F.R. 9504, June 18, 1969, as amended at 35 F.R. 8557, June 3, 1970; 36 F.R. 8947, May 15, 1971]

§ 593.213-3 Limitation.

(a) To effect a procurement under this authority there shall have been executed at Secretarial level

(1) A determination to standardize; and

(2) A determination and findings to support the negotiation of each proposed individual procurement or class of

procurements.

The Director of Requirements and Procurement, U.S. Army Materiel Command, is responsible for maintaining records pursuant to § 3.213-5 of this title. [36 F.R. 8947, May 15, 1971]

§ 593.214 Technical or specialized supplies requiring substantial initial investment or extended period of preparation for manufacture.

§ 593.214-2 Application.

When avoidance of duplication of private investment is relied upon as a factor Justifying negotiation under this authority, the supporting data submitted with the proposed determination and findings for Secretarial action shall contain convincing factual information that such duplication would be likely to result in additional cost to the Government.

§ 593.215 Negotiation after advertising. § 593.215-2 Limitation.

Subject to the limitations in § 3.215-2 of this title, this authority may also be used for the procurement of an amount less than the entire portion of the procurement originally advertised.

§ 593.216 Purchases in the interest of national defense or industrial mobilization.

ticular prospective contractor or particular plant or facility available, and such necessity must arise from genuine considerations of national defense or industrial mobilization in event of a national emergency. The supporting data and the determinations and findings shall

(1) Name the prospective contractor(s) with whom negotiation will be undertaken; and

(2) Clearly demonstrate that industrial mobilization or national defense considerations in event of a national emergency form the basis for the procurement with the particular contractor(s) named.

(b) Even though industrial mobilization, including production in completely separate plants, is a necessary consideration in placing a procurement, if competition is feasible the use of formal advertising including two-step formal advertising shall be considered, especially for the initial contract.

(c) Examples of procurements which might properly be negotiated under 10 U.S.C. 2304(a) (16) are

(1) A contract for maintaining a facility in standby or layaway so as to have it available for production in event of a national emergency;

(2) A contract for the primary purpose of keeping existing lines and personnel of a mobilization base supplier active and current for national defense or industrial mobilization reasons; and

(3) A contract to train a particular contractor as a second or additional mobilization base producer.

(d) Procedures pertaining to approval of industrial mobilization projects are set forth in AR 700-90. However, the fact that a project falls under the Army Production Base Support Program does not necessarily justify use of negotiation under 10 U.S.C. 2304 (a) (16). If the work to be performed under production engineering is virtually all design, development and test (i.e. design and test of a new, untried pilot line and of new production engineering solutions, development of production type specifications, design of new special tooling or of new special test equipment), the negotiation exception under §3.211 of this title might be appropriate, notwithstanding that PEMA funds are to be used. For example, § 3.211 of this title might be appropriate when the contract effort is(1) To modernize an existing Government-owned facility by the application of

new techniques to the equipment, processes, and specifications; or

(2) To develop a procurement package suitable for competitive procurement from "raw" technical data and test results.

(e) If authority to negotiate under 3.211 of this title is sought in a case where PEMA funds are to be used, the request for Secretarial approval of the determination and findings shall be forwarded to the addressee in § 591.150(b) (1) of this chapter.

[34 F.R. 9504, June 18, 1969, as amended at 85 F.R. 18048, Nov. 25, 1970]

§ 593.217

Otherwise authorized by law.

§ 593.217-2 Application.

(a) Any contract negotiated under this authority shall cite, in addition to 10 U.S.C. 2304 (a) (17), the applicable statute or United States Code reference.

(b) The following United States Code references are illustrative of statutes which may be cited in appropriate cases in conjunction with 10 U.S.C. 2304(a) (17)

(1) 5 U.S.C. 4105, training of civilian employees;

(2) 10 U.S.C. 1079, hospital and physicians contracts relating to dependent medical care;

(3) 15 U.S.C. 637(a), small business, section 8, Small Business Act;

(4) 15 U.S.C. 644, small business, section 15, Small Business Act;

(5) 18 U.S.C. 4124, prison-made supplies;

(6) 41 U.S.C. 48, blind-made supplies; and

(7) 49 U.S.C. 65, transportation services procured from commercial carriers lawfully operating in the territory in which such services are to be performed. § 593.217-30 Limitation.

Except as authorized in § 593.217-2, this authority shall not be used to negotiate a contract without the prior written approval of the cognizant head of procuring activity or higher authority. The contract file shall contain or cross-reference the required approval.

Subpart C-Determinations and
Findings

§ 593.301 Nature of determinations and findings.

(a) Normally a determination shall not be stated in the alternative (Example 1); however, cases exist where such a statement may be proper (Example 2); and, when the facts adequately support alternatives, they may properly be stated conjunctively (Example 3). All examples are based upon a portion of § 3.214-3 of this title.

(1) Example 1. It is normally improper for the determination to state "that procurement by formal advertising either would be likely to result in additional cost to the Government by reason of duplication of investment, or would result in duplication of necessary preparation which would unduly delay the procurement." Instead, the alternative most responsive to the facts set forth in the findings should be used alone.

(2) Example 2. A statement in the alternative may be used in an appropriate class determination, e.g. where some of the procurement actions proposed would duplicate investment and others would unduly delay the procurement.

(3) Example 3. When both alternatives are supported by fact, the determination may properly state "that the procurement by formal advertising would be likely to result in additional cost to the Government by reason of duplication of investment and would result in duplication of necessary preparation which would unduly delay the procurement."

(b) When class determinations and findings are requested, the identity of the property or services to be procured shall be clearly presented to the approving authority so as to apprise him of the procurement actions to which his approval would apply. Such identification is required to avoid an unlawful delegation of authority under 10 U.S.C. 2311. At the time an individual negotiated procurement is initiated under authority of a class determination and findings, the contracting officer shall ensure that formal advertising is not feasible or practicable and shall prepare a statement of use for each procurement exceeding $10,000 showing

(1) The identity of the class determination and findings;

(2) Purchasing office;

(3) Item(s) and quantity(ies);
(4) Contractor;

(7) Whether or not competitive.

A copy of the statement of use shall be forwarded to the cognizant head of procuring activity.

(c) Premature disclosure of information contained in a determination and findings and its supporting data could provide an unfair advantage to one prospective contractor over another or create an impression that fair treatment was not being accorded all concerned. Accordingly, determinations and findings and supporting data not classified for other reasons shall be marked "For Official Use Only," unless the contracting officer determines in writing that there is no likely risk of prejudice to prospective contractors. Marking and removal of marking "For Official Use Only" shall be in accordance with AR 340-16.

[34 F.R. 9504, June 18, 1969, as amended at 35 F.R. 8557, June 3, 1970; 36 FR. 20679, Oct. 28, 1971]

§ 593.302

Determinations and findings by the Secretary of a Department. In addition to the determination and findings set forth in § 3.302 of this title, determinations and findings may be required at Secretarial level in relation to

(a) Section 3.404-7 of this title with respect to use of a contract providing for retroactive price redetermination after completion;

(b) 10 U.S.C. 2353 relating to the acquisition or construction by, or the furnishing to, a contractor of research, developmental, or test facilities and equipment and specialized housing therefor under a research or development contract (see § 593.306-52);

(c) 10 U.S.C. 2354 relating to use of an indemnification clause in a research and development contract (see § 593.30653);

(d) Section 3.807-3(a) of this title with respect to a waiver in exceptional cases of requirements for submission by contractors of cost or pricing data and certificates relating thereto (see § 593.30654);

(e) Part 17 of this title (Public Law 85-804) (see §§ 17.208 and 17.303 of this title and § 593.306-53(c));

(f) Contracts for services of certain experts or consultants and for stenographic reporting services (see §§ 591.450-3, 593.306-55, 612.205, and 612.209

of this chapter). NOTE: A separate determination and findings is required to support such contracts not covered by an annual delegation; and

(g) Architect-engineer services under 10 U.S.C. 4540 and other pertinent statutes (see § 591.450-5 and 593.306-56 of this chapter).

[34 F.R. 9504, June 18, 1969, as amended at 36 F.R. 20679, Oct. 28, 1971]

§ 593.303 Determinations and findings below the Secretarial level.

(a) Heads of procuring activities, their deputies, and principal assistants responsible for procurement are delegated, without power of redelegation, the authority to make class determinations and findings with respect to negotiation pursuant to §§ 3.202, 3.207, 3.208, and 3.210 of this title.

(b) Determinations of estimated cost (8 3.405-6(c) (2) of this title) for the purpose of measuring the maximum fixed fee (see 10 U.S.C. 2306(d)) or maximum total fee under § 3.405-4(c) of this title may be made by the cognizant head of procuring activity or his authorized designee. Each such determination of estimated cost for fee measurement purposes shall be made a matter of record at the time of award of any cost-reimbursement type contract which contains provisions both for cost incentives and for excluding certain estimated costs from the target cost, or which contains & firm fixed-price or cost-sharing element.

§ 593.305 Formats for determinations and findings.

A determination and findings shall be concise and normally shall not exceed 12 pages. See § 593.306 and appendix J, ASPR, for

(a) Format for letter of transmittal forwarding a determination and findings for Secretarial action;

(b) Description of supporting data required to accompany a determination and findings submitted for Secretarial approval;

(c) Cover sheet format of the justification for Secretarial authorization for negotiation; and

(d) Formats for determinations and findings.

§ 593.306 Procedure with respect to determinations and findings.

(a) The basic procedure for obtaining approval of a determination and findings

requiring Secretarial action consists of(1) Preparation and submission through procurement channels to the appropriate Secretarial office of the document to be signed;

(2) A Justification for Secretarial authorization for negotiation containing required supporting data and an AP plan when appropriate; and

(3) A transmittal letter.

(b) The submission shall be made in an original and five copies in sufficient time to allow a minimum of fifteen (15) working days within Headquarters, Department of the Army.

§ 593.306-50 Authority to negotiate.

Each request for Secretarial determination under 10 U.S.C. 2304(a) (11) through (16) shall consist of—

(a) A letter of transmittal in the format in § 593.306-51;

(b) The justification for negotiation recommending approval of the determination and findings as required by appendix J, ASPR;

(c) The supporting data to the justification in the format prescribed in Appendix J. ASPR;

(d) The determination and findings in the appropriate format prescribed in Appendix J, ASPR;

(e) An AP plan, if applicable, in the format prescribed.

§ 593.306-51 Letter of transmittal.

The following format is typical of a letter of transmittal for requesting Secretarial approval of a determination and findings

DEPARTMENT OF THE ARMY

(PROCURING OR REQUIRING ACTIVITY) SUBJECT: Request for Approval of Determination and Findings.

THRU: 1

Enter the appropriate subparagraph for negotiation.

[84 F.R. 9504, June 18, 1969, as amended at 35 F.R. 18048, Nov. 25, 1970]

§ 593.306-52 Specialized research and development facilities.

Each request for a Secretarial determination and findings under 10 U.S.C. 2353 shall contain

(a) A description of the procurement to include contract type, funds used, property or services being procured, contractor, any urgency considerations, and any explanation necessary to apprise the approving authority of unique or unusual aspects. Factual information shall be given in sufficient detail to sustain a finding that the contract is for research, development, or both.

(b) A description of the research, development, or test facilities and equipment and specialized housing therefor which are to be provided the contractor at Government expense. This information shall include estimated cost; details concerning ownership of land on which they are to be affixed; severability; statement as to whether any of the proposed facilities have general utility; details which show that the property is of a special character useful primarily for research, development, or test purposes (see AR 415–25); and an explanation of why such property is necessary for the performance of the contract.

(c) An explanation of the basis upon which the facilities and equipment are to be provided to the contractor, e.g. loan, lease, other; whether they are readily removable or separable without unreasonable expense or unreasonable loss of value; and a description of the provisions which are to be included in the contract either for

(1) Reimbursing the Government for the fair value of the property at or near the completion or termination of the contract;