18-3.000 Scope of part.

This part sets forth policies and proceures to be followed in procurements by egotiation, pursuant to the provisions f sections 203(b)(5) and 301(b) of the ational Aeronautics and Space Act of 958 (42 U.S.C. 2473 (b) (5) and 10 U.S.C. 303(a) (5), espectively) and Chapter 37 of Title 10 (10 U.S.C. 2301-2313). The following policies and procedures re included:

(a) The basic requirements for the rocurement of supplies and services by Beans of negotiation;

(b) The different circumstances uner which negotiation is permitted;

(c) Determinations and findings that ay be required before a contract is intered into by negotiation;

(d) Approved types of negotiated conracts and their use;

(e) Procedures for effecting purchases of not more than $2,500;

(f) Price negotiation policies and techniques; and

(g) Subcontracting policies and procedures.

Subpart 18-3.1-Use of Negotiation § 18-3.100 Scope of subpart.

This subpart deals with the nature and use of negotiation as distingushed from formal advertising, and with limitations upon that use.

§ 18-3.101 General requirements for negotiation.

(a) Procurement shall be made by formal advertising whenever such method is feasible and practicable under the existing conditions and circumstances, even though negotiation may be authorized under Subpart 18-3.2. Among the factors to be considered in determining whether formal advertising is feasible and practicable are:

(1) The number and location of potential suppliers;

(2) The adequacy of the specifications for advertising;

(3) The nature of the items being purchased;

1

(4) The time available; and

(5) The type of contract contemplated.

(b) No contract shall be entered into by negotiation unless or until the following requirements have been satisfied.

(1) Formal advertising is not feasible and practicable;

(2) The contemplated procurement comes within one of the circumstances permitting negotiation set forth in 10 U.S.C. 2304(a);

(3) Any necessary determinations and findings have been made;

(4) Prescribed clearances or approvals have been obtained;

(5) The prospective contractor has been determined to be responsible; and (6) Other requirements of this chapter have been met.

§ 18-3.102 Factors to be considered in negotiated procurements.

(a) In all negotiated procurements in excess of $2,500 in which rates or prices are not fixed by law or regulation and in which time of delivery will permit, proposals shall be solicited from the maximum number of qualified sources

consistent with the nature and requirements of the supplies or services to be procured. Such proposals shall be supported by statements and analyses of estimated costs or other evidence of reasonable prices and other matters deemed necessary by the contracting officer. In all such negotiated procurements, including those subject to Source Evaluation Board procedures (see § 183.804-3), written or oral discussions shall be conducted with all responsible offerors who submit proposals within a competitive range, price and other factors considered: Provided, however, That written or oral discussions need not be conducted for:

(1) Procurements in implementation of authorized set-aside programs; or

(2) Procurements where it can be clearly demonstrated, from the existence of adequate competition or accurate prior cost experience with the product, that acceptance of an initial proposal without discussion would result in fair and reasonable prices and where the request for proposals notifies all offerors of the possibility that award may be made without discussion.

For procurements of $2,500 or less, see Subpart 18-3.6.

(b) During the course of negotiations, contracting officers and their negotiators shall give due attention to the following and any other appropriate factors:

(1) Comparison of prices quoted, and consideration of other prices for the same or similar supplies or services, with due regard to production costs, including extra-pay shift, multi-shift and overtime costs, and any other factor relating to price, such as profits, costs of transportation, and cash discounts;

(2) Comparison of the business reputations, capabilities, and responsibilities of the respective persons or firms who submit proposals;

(3) Consideration of the quality of the supplies or services offered, or of the quantity of the same or similar supplies or services previously furnished, with particular regard to the satisfaction of technical requirements;

(4) Consideration of delivery requirements;

(6) Investigation of price aspects any important subcontract;

(7) Individual bargaining, by mail by conference;

(8) Consideration of cost sharing; (9) Effective utilization in general the most desirable type of contract; (10) Consideration of the size of business concern;

(11) Consideration as to whether prospective supplier requires expans or conversion of plant facilities;

(12) Consideration as to whether prospective supplier is located in a s plus labor area;

(13) Consideration as to whether prospective supplier will have an a quate supply of qualified labor;

(14) Consideration of the extent subcontracting;

(15) Consideration of the existing potential workload of the prospec supplier;

(16). Consideration of broadening industrial base by the development additional suppliers;

(17) Consideration of whether contractor requires Government-f nished property, machine tools, or fa ities; or Government-operated facilities; and

(18) Advantages or disadvantages the Government that might result fr making multiple awards. § 18-3.103

Records and reports of gotiated contracts.

See § 18-1.110 of this chapter.

§ 18-3.104 Aids to small business in gotiated procurement.

See Subpart 18-1.7 of this chapter § 18-3.105 Aids to labor surplus: concerns in negotiated procurem See Subpart 18-1.8 of this chapte § 18-3.106 Dissemination of proc ment information.

§ 18-3.106-1 Synopses of proposed

curements.

Procedures with regard to synopse proposed procurements are set fort § 18-1.1003 of this chapter.

§ 18-3.106-2 Synopses of cont

awards.

Procedures with regard to prepara

cost analyses;

forth in § 18-1.1004.

18-3.106-3 Award information to unsuccessful offerors.

Subject to the provisions of NASA reglations governing classified informaLon, the following policies and procedures shall be observed in making inArmation available to unsuccessful erors:

a) Except as provided in paragraph

of this section, and subject to the provisions of § 18–3.854, as soon as final contract action has been taken with the Luccessful offeror, the contracting ofEser shall give written notice to unsuccessful offerors for procurements in excess of $10,000 that their proposals were sot accepted; and

b) In the case of procurements for which a Source Evaluation Board has been appointed, as soon as an offeror aas been selected with whom to open final contract negotiations, all offerors

all be notified of this fact in writing. The time for notifying any company and the issuance of any news release shall be coordinated in advance with the Astant Administrator for Legislative airs and the Assistant Administrator Sor Public Affairs, NASA Headquarters. 18-3.106-4 Disclosure of information prior to selection of contractor.

The policies and procedures governing the disclosure of information prior to election of a contractor are set forth =118-3.804-4.

18-3.109 Restrictions on disclosure of data in proposals.

a Requests for proposals may reTe the offeror to submit with proposal data which may include a gn or plan for accomplishing the Nectives of the procurement. Such a may include information which the Teror does not want disclosed to the ic or used by the Government for purpose other than evaluation of The proposals. Offerors shall mark each Leet of data which they so wish to Pinct with the legend set forth below:

This data, furnished in response to RFP

- shall not be disclosed outside Government or be duplicated, used, or farsed in whole or in part for any purpose er than to evaluate the proposal promed, that if a contract is awarded to this

offeror as a result of or in connection with the submission of such data, the Government shall have the right to duplicate, use, or disclose this data to the extent provided in the contract. This restriction does not limit the Government's right to use information contained in such data if it is obtained from another source. (DECEMBER 1962)

Contracting officers shall not refuse to consider any proposal merely because data submitted with that proposal is so marked. Data so marked shall be used only to evaluate proposals and shall not be disclosed outside the Government without the written permission of the offeror except under the conditions provided in the legend. If it is desired to duplicate, use, or disclose the data of the offeror to whom the contract is awarded, for purposes other than to evaluate the proposal, the contract should so provide.

(b) The provisions of paragraph (a) of this section do not apply to procurement by formal advertising. However, see § 18-2.404-4 of this chapter with respect to public disclosure of descriptive literature or material submitted by a bidder on a restrictive basis.

§ 18-3.110 Solicitations for informational or planning purposes.

See § 18-1.309 of this chapter.

§ 78-3.111 Protests against award.

Protests against award of negotiated procurements shall be treated substantially in accordance with § 18-2.407-9 of this chapter and will be acted upon by the Director of Procurement with the concurrence of the Office of General Counsel. However, when the selection of a contractor has been made by the Administrator, either after proceedings of a Source Evaluation Board or otherwise, the final action will be directed by the Administrator. § 18-3.112

award.

Disclosure of mistakes after

When a mistake in a contractor's proposal is not discovered until after award, the authority to correct mistakes contained in § 18-2.406-4 of this chapter may be utilized in accordance with the limitations and procedure set forth therein.

For the duration of the national emergency declared pursuant to Presidential Proclamation 2914, the Administrator, by NASA Management Instruction 3-312, has determined that it is necessary in the public interest to negotiate purchases and contracts without formal advertising during the period of the national emergency if they fall within one of the following three categories:

(a) Procurements made in furtherance of the policy of encouraging the placing of contracts in labor surplus areas as enunciated in current Defense Manpower Policy No. 4;

(b) Procurement made in furtherance of the NASA Small Business Program after a unilateral determination by the contracting officer to set aside all or a part of the procurement for the exclusive participation of small business concerns; or

(c) Procurement of the unawarded portion of the total requirement set aside for small business concerns when no other negotiating authority is appropriate.

§ 18-3.201-2 shall be supported by memorandum for the contract f signed by the contracting officer, speci ing the pertinent provision of the det mination used as authority for negoti ing the contract.

§ 18–3.202 Public exigency. Authority.

§ 18-3.202-1

(a) Supplies or services needed at o because of a fire, explosion, or other aster; and

(b) The breakdown of a piece of erating machinery or equipment req ing immediate repair or replacemen order that a critical research prog I will not be delayed.

§ 18-3.202-3 Limitation.

Every contract negotiated under authority shall be accompanied wit determination and findings signed by contracting officer justifying its which shall become part of the cont file. The findings shall set forth t facts and circumstances that clearly convincingly establish, with respec the use of this authority, that formal vertising would not be feasible and p ticable. The authority of 10 U 2304 (a) (2) shall not be used if nego tion is authorized under 10 U.S.C. (a) (3) or 2304 (a) (6).

§ 18-3.203 Purchases not in exces $2,500.

Contracts or purchases aggregating $2,500 or less shall be made under this authority rather than under any other authority for negotiation which might otherwise be applicable, except that this authority shall not be used where 10 U.S.C. 2304 (a) (6) is applicable. In arriving at the "aggregate amount involved" there must be included all supplies and services which would properly be grouped together in a single transaction and which would be included in a single advertisement for bids if the procurement were being effected by formal advertising. Purchases or contracts aggregating more than $2,500 shall not be broken down into several purchases or contracts of less than $2,500. (However, see § 18-3.606 for guidance in connection with the use of blanket purchase orders.)

§ 18-3.204 Personal or professional services.

§ 18-3.204-1 Authority.

Pursuant to 10 U.S.C. 2304 (a) (4), purchases and contracts may be negotiated

if:

for personal or professional services. § 18-3.204-2

Application.

(a) This authority shall be used only when all of the following conditions have been satisfied:

(1) If personal services, they are required to be performed by an individual contractor in person (not by a concern); if professional services, they may be performed either by an individual contractor in person or a concern;

(2) The services are of a professional nature or are to be performed under Government supervision and paid for on a time basis; and

(3) Procurement of the services is authorized by law and is effected in accordance with the requirements of any such law.

(b) Under section 203 (b) (9) of the National Aeronautics and Space Act of

or

(b) Experimental, developmental, or research work (including services, tests, and reports necessary incidental thereto) to be conducted by any university, college, or other educational institution, and reports furnished in connection therewith; and

(c) Analyses, studies, or reports (statistical or otherwise) to be conducted by any university, college, or other educational institution.

§ 18-3.205-3 Limitation.

This authority shall not be used when negotiation is authorized by the provisions of §§ 18-3.203 and 18-3.206.