§ 18-1.305-4 Time of delivery clauses.

(a) Examples of time of delivery clauses for invitations for bids are set forth in paragraphs (b) and (c) of this section. They may be modified or other clauses may be used to state particular delivery requirements or any special proEcedures to be used in the evaluation, re=jection, or award process as regards time of delivery. These clauses also may be suitably modified and used as appropriate in negotiated procurements.

(b) The following clause may be used where delivery by a particular time is essential to meet the Government's requirements:

TIME OF DELIVERY (FEBRUARY 1962) Delivery is REQUIRED to be made in accordance with the following schedule:

Bids offering delivery of each quantity within the applicable delivery period specified above will be evaluated equally as regards time of delivery. Bids offering delivery of a quantity under such terms or conGditions that delivery will not clearly fall within the applicable delivery period specified above will be considered nonresponsive and will be rejected. Where a bidder offers an earlier delivery schedule than that called for above, the Government reserves the right to award either in accordance with the required schedule or in accordance with the schedule offered by the bidder. If the bidder offers no other delivery schedule, the delivery schedule stated above shall apply.

BIDDER'S PROPOSED DELIVERY SCHEDULE

(d) In the blank spaces entitled "Time" under the clauses set forth in paragraphs (b) and (c) of this section, the contracting officer shall insert one of the following phrases, as appropriate:

(1) "[On] (on or before) the date(s) specified below."

(2) "Within the number of days stated below after date of contract."

(3) "Within the number of days stated below after the date of receipt of a written notice of award."

mized to the greatest practical extent and, in the event that multiple approval signatures are required, they shall, where possible, be obtained concurrently.

§ 18-1.307 Priorities, allocations and allotments.

§ 18-1.307-1 NASA program.

(a) General. In the interest of maintaining a minimum priorities and allocations system as a mobilization preparedness measure, it is national policy to require contractors to use ratings and allotment authority to support military procurement, to the extent required by the Business and Defense Services Administration (BDSA). In addition to direct procurement and construction of the Department of Defense, the Office of Emergency Plans (formerly OCDM) has authorized BDSA to provide priorities authority for all procurement and construction programs of NASA. The Department of Defense is the claimant agency to the Office of Emergency Plans for NASA.

(b) Implementation. Department of Defense implementation of all rules and regulations published by BDSA, with respect to which the Department of Defense is delegated administrative responsibility, is contained in the DOD Priorities and Allocations Manual. NASA implementation is published in Part 1852 of this chapter.

(c) Operating responsibility. NASA installations shall comply with the priorities and allocations program, including the Defense Materials Systems, as set forth in:

(1) The DOD Priorities and Allocations Manual;

(2) The rules and regulations published by BDSA; and

(3) Instructions set forth in Part 1852 of this chapter.

§ 18-1.307-2 Required use of priorities, allocations, and allotments clause.

The following clause shall be inserted in or attached to all ratable contracts, except that no such clause need be attached to those purchase orders of less than $500 which are not rated. Ratable contracts are those contracts for supplies which are required to be supported with rating and allotment authority (see the DOD Priorities and Allocations Manual).

PRIORITIES, ALLOCATIONS, AND ALLOTMENTS (SEPTEMBER 1962)

The contractor shall follow the provisions of DMS Reg. 1 and all other applicable regulations and orders of the Business and Defense Services Administration in obtaining controlled materials and other products and materials needed to fill this order.

§ 18-1.308 Records of contract actions.

(a) Each contract file shall contain documentation of actions taken with respect to the contract, including final disposition, sufficient to constitute a full history of the transaction which will permit ready reconstruction of all of the stages of the transaction to:

(1) Support actions taken by various personnel in the procurement cycle;

(2) Provide information for reviews conducted by the field installation concerned, the General Accounting Office, or others;

(3) Supply data for use in preparing replies to Congressional inquiries; and (4) Furnish essential facts in the event of litigation.

To the extent that retained copies of documents do not represent all actions taken, suitable memoranda or summary statements of undocumented actions should be prepared promptly and be retained in the contract file in chronological order.

(b) Each contract file shall include the following data, in the appropriate order and to the extent applicable:

(1) A copy of the procurement request;

(2) A copy of the Determination and Findings statement and justifications for authority to negotiate (see Subpart 183.3, of this chapter);

(3) A copy of the procurement plan (see § 18-3.852 of this chapter);

(4) The list of sources solicited or justification for limiting such sources;

(5) Any small business or labor surplus set-aside determinations;

(6) A copy of the invitation for bids or the request for proposals, including the drawings and specifications or an identifiable reference thereto;

(7) The Security Requirements Check List (DD Form 254);

(8) All bids or proposals received with an abstract thereof;

(9) The bidders' Statements of Contingent Fees;

(10) All preaward surveys; (11) Selection of the successful contractor, including

(i) The reasons for selection;

(ii) Statement of the Source Evaluation Board (see § 18-3.856-2 of this chapter);

(iii) The contracting officer's deterEmination of the contractor's responsibility; and

(iv) Any Small Business Administration Certificate of Competency (see § 181.705-6);

(12) All price and cost data submitted :or used;

(13) A full record of negotiations, including but not limited to—

(i) Participants;

(ii) Dates of meetings or phone calls; (iii) Government-furnished materials cor facilities provided;

(iv) Subcontracting;

(v) Terms and conditions agreed to; (vi) Deviations, if any, from prescribed contract clauses;

(vii) Technical recommendations; and (viii) Justification for final price; (14) Justification for type of contract used (see § 18-3.304, of this chapter);

(15) Any exceptions or exemptions from the Buy American Act or Appropriation Act restrictions (see Part 18-6 of this chapter);

(16) A copy of the contract or award; (17) Required approvals of contract; (18) All pertinent correspondence; (19) Copies of all change orders, and supplements, with supporting documents;

(20) Comprehensive termination data; (21) Copies of royalty reports received;

(22) Final release upon completion of the contract; and

(23) Evidence of legal review where equired, and copy of comments, if any, nade by legal counsel;

♫ (24) Any additional documents conidered necessary to present a complete résumé of the contract action.

(c) This does not apply in the case of mall purchases (see § 18-3.603-2 (c), of his chapter). 18-1.309

Solicitations for information

or planning purposes.

It is the general policy of NASA to Colicit bids, proposals, or quotations only vhen there is a definite intention to

award a contract. However, in some cases solicitation for information or planning purposes may be justified. Requests for quotations (Standard Form 18) will be used for this purpose. In such cases, the request for quotations shall clearly state its purposes, explaining that the Government does not intend to award a contract on the basis of the request or otherwise pay for the information solicited. The foregoing does not prohibit the allowance, in accordance with § 1815.205-3 of this chapter, of the cost of preparing such quotations.

§ 18-1.310 Liquidated damages.

(a) This applies to procurement by formal advertising and procurement by negotiation. Liquidated damages provisions normally will not be utilized but may be used where both (1) the time of delivery or performance is such an important factor in the award of the contract that the Government may reasonably expect to suffer damages if the delivery or performance is delinquent, and (2) the extent or amount of such damages would be difficult or impossible to ascertain or prove. Where a liquidated damages provision is to be used in a supply or service contract, insert the clause set forth in § 18-7.105-5, of this chapter.

(b) The rate of assessment of liquidated damages must be reasonable, considered in the light of procurement requirements on a case-by-case basis, since liquidated damages fixed without reference to probable actual damages may be held to be a penalty and therefore unenforceable.

(c) The law imposes the duty upon a party injured by another to mitigate the damages which result from such wrongful action. Therefore, where a liquidated damages provision is included in a contract and a basis for termination for default exists, appropriate action should be taken expeditiously by the Government to obtain performance by the contractor or to terminate the contract. If delivery or performance is desired after termination for default, efforts must be made to obtain either delivery or performance elsewhere within a reasonable time. For these reasons, particularly close administration over contracts containing liquidated damages provisions is imperative.

(d) When any contract includes a provision for liquidated damages for delay, the Comptroller General, on the recommendation of the Administrator, NASA, is authorized and empowered to remit the whole or any part of such damages as he may consider to be just and equitable. Recommendations concerning remissions of liquidated damages will be forwarded by the contracting officer, with appropriate documentation, via the Director of the field installation to the Director of Procurement for submission to the Administrator.

§ 18-1.311 Buying in.

"Buying in" refers to the practice in procurements involving price competition, of attempting to obtain a contract award by knowingly offering a price less than anticipated costs with the expectation of either (a) increasing the contract price during the period of performance through change orders or other means, or (b) receiving future "follow-on" contracts at prices high enough to recover any losses on the original "buy-in" contract. Such a practice is not favored since its long term effects may diminish competition and it may result in poor contract performance. Where there is reason to believe that "buying in" has occurred, contracting officers shall assure that amounts thereby excluded in the development of the original contract price are not recovered in the pricing of change orders or in follow-on procurements subject to cost analysis.

§ 18-1.312 Voluntary refunds.

(a) General. A voluntary refund is a payment or credit, not required by any contractual or other legal obligation, made to the Government by a contractor or subcontractor either as a payment or as an adjustment under one or more contracts or subcontracts. It may be unsolicited or it may be made in response to a request by the Government. Where it is desired to solicit a voluntary refund from a subcontractor, the prime contractor should be encouraged to facilitate the making of such refund. In deciding whether to solicit a voluntary refund or to accept an unsolicited refund, the contracting officer shall ask legal counsel to review the contract or contracts and all data relevant thereto to determine whether the Government's rights would be jeopardized or impaired by the contracting officer's proposed action.

(b) Solicited refunds. Voluntary refunds may be requested during or after contract performance. They shall be requested only when it is considered that the Government was overcharged under a contract or was inadequately compensated for the use of Government-owned property or in the disposition of contractor inventory charged against the contract, and retention by the contractor or subcontractor of the amount in question would be contrary to good conscience and equity. The decision to solicit a voluntary refund shall be made by the Deputy Administrator or his designee after coordination with the Director of Procurement.

(c) Disposition of voluntary refunds. (1) If a refund is offered prior to final payment, it is preferable that the contract price be appropriately modified to reflect the refund. In such a case, the amount of the refund shall be credited to the applicable appropriation cited in the contract.

(2) In cases where the refund is to be made by check rather than by an adjustment in the contract price, the check shall be made payable to the National Aeronautics and Space Administration and shall be forwarded immediately to the financial management office of the appropriate installation. When forwarded, the check shall be accompanied by a letter identifying it as a voluntary refund, giving the number of the contract or contracts involved and, where possible, giving the account number of the appropriation to which the refund should be credited.

§ 18-1.314 Disputes and appeals.

(a) When a dispute cannot be settled by agreement and a decision under the "Disputes" clause is necessary, the contracting officer shall review the available facts pertinent to the dispute before making his final decision. When there is any doubt as to whether the issue in dispute is subject to the disputes procedure, a decision will be made pursuan to the "Disputes" clause. The dispute procedure shall not be invoked in case when a dispute is clearly not subject t the procedure. The contracting office shall obtain, from assigned legal an other advisors, such advice and assistand as is required to render a decision. Th decision must be that of the contractin officer (or his representative if such rep resentative has been authorized by th

contracting officer to make final decisions pursuant to the "Disputes" clause); however, prior to making the decision, the contracting officer (or representative authorized to render final decisions) may I consult with any other Government personnel involved in the dispute.

(b) The final decision should include Ia statement of facts sufficient to enable the contractor to understand both the decision and the basis therefor. Normally, the decision should (1) recite the contractor's claim or otherwise describe the nature of the dispute, with necessary references to pertinent contract provisions; (2) state the facts relevant to the dispute on which the parties are in agreement and, as clearly as possible, the facts on which they are in disagreement; and (3) set forth the contracting officer's decision and the basis therefor.

(c) When a final decision of the contracting officer involves a dispute that is subject to the procedure of a "Disputes" clause, or when there is doubt as to whether the decision is subject to such procedure, a paragraph substantially as follows shall be included in such decision:

This is the final decision of the Contracting Officer on the question involved in this dispute. Decisions on disputed questions of fact and on other questions that are subject to the procedure of the Disputes clause may be appealed in accordance with the provisions of the Disputes clause. If you decide to make such an appeal from this decision, written notice thereof (in triplicate) must be mailed or otherwise furnished to the Contracting Officer within 30 days from the date you receive this decision. Such notice should indicate that an appeal is intended and should reference this decision and identify the contract by number. The NASA Board of Contract Appeals is the authorized representative of the Administrator for hearing and determining such disputes. The rules of the NASA Board of Contract Appeals are set forth In Part 54 of the NASA Procurement Regulation (41 CFR 18-54, as amended in 29 F.R. 16769, Dec. 5, 1964, and 30 F.R. 133, Jan. 7, 1965).

(d) After an appeal has been filed, a controversy may be disposed of by agreement. However, processing of the appeal shall not be suspended by such efforts Except upon order, or as otherwise authorized, by the NASA Board of Contract Appeals.

(e) In the event of an appeal, any amount determined to be payable in the decision of the contracting officer, less any portion previously paid, normally hould be paid promptly following the

contracting officer's decision, without prejudice to the rights of either party in the event of a subsequent appeal.

§ 18-1.315 Procurement of jewel bearings.

(a) In order to promote the use of the mobilization base established at the Government-owned Turtle Mountain Bearing Plant, Rolla, N. Dak., all NASA purchases of jewel bearings shall be made from that plant in all cases where it can meet purchase requirements. In addition, all procurements of items containing jewel bearings shall provide, in the solicitations and resulting contracts, a requirement that jewel bearings in the quantities, and of the types and sizes necessary for the end items to be supplied under the contract, be purchased from the Turtle Mountain Plant and be incorporated in the delivered items, subject to the criteria provided in paragraphs (b), (c), and (d) of this section, except:

(1) When quantity requirements, quality standards, or delivery requirements cannot be satisfied by bearings manufactured at the Turtle Mountain Plant;

(2) For purchases of commercial end items having jeweled components, and the quantities of such end items or components are such that the contracting officer either knows or reasonably expects that all such end items or components are already manufactured and available from the stock of any dealer, wholesaler, distributor, or manufacturer; or

(3) For bearings used in items that are to be procured and used outside the United States, its possessions, and Puerto Rico.

(b) In order to assure that all bidders or offerors are competing on the same basis, it is necessary that the solicitation for items containing jewel bearings clearly state:

(1) The successful contractor will be required to purchase Turtle Mountain source bearings at prices established in the U.S. Government Jewel Bearing Price List then in effect, and to incorporate such bearings in the items to be delivered; and

(2) Bids or proposals are to be predicated on this requirement. If it should occur, after award, that the Turtle Mountain Plant rejects the contractor's purchase order entirely or in part, the contractor shall be required to so