HQ AFMC/PK

4375 Chidlaw Road, Suite 6

Wright-Patterson AFB OH 45433-5006

Interim Policy Letter (IPL) 96-019 1 Jul 96

EFFECTIVE DATE/IMPLEMENTATION: The AFMCFARS changes included in this letter

are to be incorporated in solicitations issued on or after the date

of this IPL. Incorporate these changes in solicitations issued

prior to the date of this IPL if such incorporation will not delay

award. This Interim Policy Letter will be superseded by an AFMCAC

published at a later date. Ensure distribution to all Contracting

Officers.

1. This IPL implements changes to the AFMCFAR resulting from SAF/AQ’s direction that HQ AFMC/PK be eliminated from certain reviews. This direction was contained in SAF/AQ letter dated 26 Feb 96. The following Intermediate Review cases have been approved:

a. Revisions to Deviations, AFMCFARS 5301.4; Other Than Full and Open Competition, AFMCFARS 5306.3; and Agency-head Responsibilities, AFMCFARS 5307.103 (Intermediate Review Case 96-156). These changes eliminate

HQ AFMC/PK from the review process for J&As, APs, Indemnification Requests, and Approval of Class or Financing Deviations and made some other administrative changes. Part 5306.3 also eliminated duplicate coverage and added a revision to provide direction for the processing/approval of special access programs. (Atch 1)

b. Revision of Second or Subsequent Best and Final Offers (BAFOs), AFMCFARS 5315.611(c)(i)(B), (Intermediate Review Case 96-153). Requests for second or subsequent BAFOs for formal source selections involving Major/

Selected and Other Programs will be forwarded directly to SAF/AQCS for review and processing to SAF/AQ IAW AFFARS 5315.611. HQ AFMC remains in the review process for requests regarding second or subsequent BAFOs for Other Contracting using formal source selection procedures. (Atch 2)

c. Addition of Prohibition on Obtaining Cost or Pricing Data, Exceptional Cases, AFMCFARS 5315.804-1(b)(5)(90) (Intermediate Review Case 96-157). This change eliminates AFMC/PK from the review process for waiving the requirement for cost or pricing data for PEO and DAC programs and SAF/AQCP from the review process for waiving the requirement for cost or pricing data for Other Contracting. (Atch 3)

d. Deletion to Fixed-Price Contracts, Contract Clauses, AFMCFARS 5316.203-4(d)(2)(iv) (Intermediate Review Case 96-157). This change eliminates HQ AFMC/PK from the review process for unusual progress payments. (Atch 4)

e. Additions to Unusual Progress Payments, AFMCFARS 5332.501-2 (Intermediate Review Case 96-157). This change eliminates HQ AFMC/PK from the review process for unusual progress payments. (Atch 5)

f. Additions to Deferment of Collection, AFMCFARS 5332.613 (Intermediate Review Case 96-160). This change clarifies that AFMC debt deferment requests will be forwarded to SAF/FMFB. (Atch 6)

g. Revisions to Protests to GAO, AFMCFARS 5333.104 (Intermediate Review Case 96-152). This change eliminates HQ AFMC/PK from the GAO protest agency report review process and from the review process for Major/Selected and Other Program’s requests to award or continue contract performance in the face of a GAO protest. Centers will continue to forward agency reports to SAF/AQCX. However, they will send two copies of the contracting officer’s statement and memorandum of law instead of a complete copy of the agency report to HQ AFMC/PKP. HQ AFMC/PK is no longer required to render a MAJCOM recommendation. Centers requesting award or continued contract performance for Major/Selected and Other Programs will send the requests directly to SAF/AQCX. Requests for other contracting will still be reviewed by HQ AFMC/PK and approved by AFMC/CC. The “Finding and Authority” format has been changed to a “Determination and Finding” format to comply with FAR 1.7. A sample has been included in the new coverage. (Atch 7)

h. Additions to Waiver of Certification, AFMCFARS 5342.770-3 (Intermediate Review Case 96-157). This change eliminates HQ AFMC/PK from the review process for waiver of obtaining certification of indirect costs.

(Atch 8)

i. Revisions to Warranties in Weapon System Acquisitions, AFMCFARS 5346.770 (Intermediate Review Case 96-159). This change eliminates HQ AFMC from the weapon system warranty waiver review process. Annual warranty usage reporting was also eliminated. The major addition was the designation of

HQ AFMC/PK as waiver authority for AFM 64-110 peculiar requirements. (Atch 9)

2. If you have any questions, please call me or have your staff call my action officer, Ms. Chris Shockey, HQ AFMC/PKPB, DSN 787-6757.

//signed//

LINDA G. WILLIAMS, SES

Deputy Director of Contracting

Attachments:

1. AFMCFAR Case 96-156

2. AFMCFAR Case 96-153

3. AFMCFAR Case 96-157

4. AFMCFAR Case 96-157

5. AFMCFAR Case 96-157

6. AFMCFAR Case 96-160

7. AFMCFAR Case 96-152

8. AFMCFAR Case 96-157

9. AFMCFAR Case 96-159

cc:

HQ AFMC/IGIK/JAQ/PKA/PKD/PKL/

PKO/PKP/PKS/PKT/PKX

SAF/AQCP

5301.403 Individual deviations.

(b) Submit any individual deviation requests covering the areas set forth in DFARS 201.402(1)(i) directly to SAF/AQCS for processing.

5301.404 Class deviations.

(a) Submit all requests for class deviations from the FAR, DFARS, and AFFARS directly to SAF/AQCS for processing. Submit requests for class deviations from the AFMCFARS to HQ AFMC/PKA for processing.

5301.490 Deviations from FAR Part 32, Contract Financing.

Delete in its entirety.

Atch 1

PART 5306--COMPETITION REQUIREMENTS

SUBPART 5306.3--OTHER THAN FULL AND OPEN COMPETITION

5306.301 Policy.

(90) Processing of J&As will be in accordance with local procedures and may be accomplished as part of the purchase request coordination or advance synopsis.

5306.302 Circumstances permitting other than full and open competition.

5306.3022 Unusual and compelling urgency.

(b) Application.

(1) When FAR exception 6.302-2 is used, the specific extent and nature of the harm to the government must be clearly stated in the J&A. Merely citing a USAF precedence rating and/or Force Activity Designator (FAD) rating or PMD/PAD guidance is not in itself sufficient reason to use a FAR exception 6.302-2 J&A.

(c) Limitations.

(92) If a FAR 6.302-1 exception is being used and circumstances such as mission need bring it within the purview of FAR exception 6.302-2, comply with all of the procedures/approvals for FAR exception 6.302-2 if the procurement proceeds on this basis. It is not permissible to mix the exceptions to obtain the best benefit, i.e., not synopsize the requirement, not prepare the J&A until after the award, and then cite FAR exception 6.302-1 in the J&A as the basis for not using full and open competition procedures.

5306.3024 International Agreement.

(c) Limitations.

(70)(iii) AFOSR/PK is responsible for preparing IACR documents at their location and the local Competition Advocate is the designated approval authority.

(90) The IACR format and approval document will be substantially the same as shown in Figures 5306-1 and 5306-2.

5306.303 Justifications.

5306.3032 Content.

(a)(90) The cognizant technical or requirements activity will prepare and provide the information required by FAR 6.3032(a)(1), (5), (8), (9), and (11). They will also provide the certification required by FAR 6.3032(b).

(91) The cognizant contracting office will prepare and provide, as a minimum, the information and certification required by FAR 6.303-2(a)(6), (7), (10), and (12). The contracting office will also provide the information required by AFFARS 5306.303-2(a)(2).

(92) J&As for less that $50M may utilize local formats and may incorporate information by reference unless specifically prohibited by the approving official.

(93) For actions requiring the approval of the Senior Procurement Executive (SPE), the J&A format will be substantially the same as shown in Figure

5306-3. The contracting office shall be OPR for preparation of these documents.

(94) When not available at the time of processing, results of the notices of proposed contract action (NOCA), required by FAR 5.201, are not required in the J&A. NOCA results received after processing of the J&A will be documented in the contract file. If the CO determines that those results represent significant additional information impacting the basis for the J&A, the additional information will be provided to the J&A approval authority IAW AFFARS 5306.303-291.

5306.303290 Justification Review Document.

(90) For Science and Technology (S&T) acquisitions which require SPE approval, the Technical Executive Officer (TEO) will coordinate on the JRD.

(91) The JRD will be substantially the same as shown in Figure 5306-4. The J&A cover page at 5307.105-90, Figure 5307.4, serves as the JRD for S&T acquisitions under $100M.

(92) For J&As exceeding $10M, where the Competition Advocate is not the approval authority, Competition Advocate coordination is required.

5306.304-90 Approval of the justification.

(b) For Other Contracting actions between $10M(+) and $50M which are not assigned to a PEO or DAC, the following designees are authorized to approve justifications. In accordance with FAR 6.304(a)(3), redelegation to a general officer or SES is authorized.

(i) Logistics Center/CC or CV/CD.

(ii) Product Center/CC or CV/CD.

(iii) AFOSR/CC.

(iv) AL/CC.

(v) RL/CD.

(vi) PL/CD.

(vii) WL/CD.

(viii) AFDTC/CC or CD.

(ix) AFFTC/CC or CD.

(x) HQ AFMC/PK for AEDC and AGMC.

(90) For Other Contracting actions, the SCCO/SLCO shall coordinate on J&As over $1M. AFOSR/PK will coordinate as the SCCO.

5306.30493 Procedures for J&A changes.

(d)(90) Two or more requirements which each had a separate J&A prepared and approved may be combined into a single contract/contract action. If the cumulative dollar value for the combined acquisition exceeds the highest valued J&A's approving official's authority, the contracting officer shall submit copies of the previously approved J&As with a cover letter requesting reapproval from appropriate higher authority. If the combined acquisition requires SPE approval, prepare a single part J&A and process in accordance with AFMCFARS 5306.304.

Figure 5306-1

INTERNATIONAL AGREEMENT COMPETITIVE RESTRICTIONS

I. ORGANIZATION: AFMC Contracting Activity (include base name and zip code)

PCO's Name/Office Symbol/Phone Number (DSN)

PR Number (If desired)

II. DESCRIPTION OF REQUIREMENT:

- Narrative description to include estimated cost.

III. NATURE/DESCRIPTION OF THE ACTION:

- Include contract type, period of performance, cost and schedule, and rationale.

IV. STATUTORY AUTHORITY: 10 USC 2304(c)(4) as implemented by FAR 6.302Ä4, International Agreement.

V. APPLICABILITY OF AUTHORITY:

- Include statement that the cited exception is applicable because ............(LOA #, treaty, agreement, etc.) dated ..... directed that the requirement be obtained from ......... NOTE: Provide a copy of the page(s) of the agreement, treaty, or written directions that has the effect of restricting competition by the requirements activity and attach them to the IACR.

VI. CONTRACTING OFFICER & TECHNICAL/REQUIREMENTS PERSONNEL CERTIFICATION: The Contracting Officer's signature evidences that he/she has determined the IACR to be both accurate and complete to the best of his/her knowledge and belief. The Program Manager's/requirements personnel's signature evidences that any supporting data contained in the IACR, which is his/her responsibility, is both accurate and complete.

Figure 5306-2

INTERNATIONAL AGREEMENT APPROVAL DOCUMENT

AFMC CONTRACTING ACTIVITY:

PR: (if desired)

PROGRAM:

TECHNICAL/REQUIREMENTS CERTIFIER: *

IN ACCORDANCE WITH 10 USC 2304(f)(2)(E) AND P.L. 101Ä189 SECTION 817, THIS IS TO CERTIFY THAT SOLE SOURCE DIRECTION AS AUTHORIZED BY LETTER OF ACCEPTANCE, TREATY, OR OTHER WRITTEN DIRECTIONS....DATED....HAS THE EFFECT OF REQUIRING THE USE OF OTHER THAN COMPETITIVE PROCEDURES.

CONTRACTING OFFICER'S SIGNATURE AND CERTIFICATION TO THE ABOVE: *

BUYING OFFICE CONTRACTING OFFICIAL (if a PEO program): *

SENIOR CENTER/LABORATORY CONTRACTING OFFICIAL (if a DAC program or Other Contracting): * (See NOTE Below)

COMPETITION ADVOCATE APPROVAL: *

EXCEPTIONS:

NOTE: AFOSR/PK will sign as the SCCO.

* (Typed name/office/phone number/date/signature)

Figure 5306-3

JUSTIFICATION AND APPROVAL

FOR OTHER THAN FULL AND OPEN COMPETITION

I. ORGANIZATION AFMC Contracting Activity (include base name and zip code), PCO's name, PR Number (if desired).

II. DESCRIPTION OF ACTION Describe the nature of the contractual action which needs approval (e. g., new contract, solicitation). Identify the proposed contractor and type of contract. If FAR Exception 2 is cited, specify the date UCA was or is anticipated to be issued and the amount.

III. DESCRIPTION OF SUPPLIES/SERVICES Specifically describe the supplies/services to be acquired and the quantity of each item. acquisitions, include only a representative sample of 5-10 of the highest priced or total cost items; include NSN, description, quantity, and estimated value. approval for more than one fiscal year requirement is needed give rationale for request. Include the total estimated value. Include where the requirement fits in the larger overall program and how the requirements were purchased in the past.

IV. AUTHORITY Identify the statutory authority and applicable FAR 6.302 citation permitting other than full and open competition.

V. APPLICABILITY OF AUTHORITY Describe why the action meets the cited authority. Include a narrative description of the proposed contractor's unique qualifications for accomplishing the required tasks.

VI. EFFORTS TO OBTAIN COMPETITION Describe efforts to ensure that offers are solicited from as many potential sources as practicable. Include a copy of the sources sought synopsis together with any screening criteria used. Also include the results of the screening process. If the proposed action was not synopsized, include the specific authority for not doing so and details of the serious harm (financial or mission impact) that would be caused to the government if the specific synopsis time periods were adhered to. If appropriate, include a statement that "no qualifying country sources have expressed interest." If qualifying country sources have expressed interest, but are to be excluded, provide supporting rationale.

VII. FAIR AND REASONABLE COSTS Include a contracting officer determination that the anticipated cost to the government is to be fair and reasonable.

VIII. MARKET RESEARCH Describe the market research (FAR 10) conducted to identify all qualified sources and the results or give reasons if one was not conducted.

IX. OTHER FACTS:

a. Acquisition Data Availability Explain why technical data packages, specifications, engineering descriptions, statements of work, or purchase description suitable for full and open competition have not been developed, are not being developed, are not being used, or are not available. Describe actions taken or planned to remedy this situation, including a discussion of claims of proprietary data by the contractor.

b. Followon Contracts When FAR 6.3021(a)(2)(ii) is cited as the basis for the justification, include an estimate of the cost that would be duplicated and the basis and derivation of the estimate or provide details on why a delay would be unacceptable.

c. Unusual and Compelling Urgency the justification, provide data, estimated cost, or other rationale as to the nature and extent of the harm to the government. REMINDER Only the "MINIMUM REQUIRED" qualifies for Exception 2 coverage and use of this authority is not an automatic exemption from synopsis.

d. DD Form 350 Coding Cite the anticipated entry for extent competed (Block C3).

X. INTERESTED SOURCES interest in the acquisition. Provide results of the synopsis, or status of synopsis or synopsis action. If interest has been expressed by other contractors, an explanation is needed as to why they cannot perform or are not expected to submit an offer.

XI. STEPS TO FOSTER COMPETITION If approval is sought for more than one year, provide specific rationale on why a sole source effort is required for that time duration. to foster competition on subsequent acquisitions for the required supplies or services and actions that the agency could take to resolve or overcome competitive barriers which are apparent through the proposed acquisition. Include milestones for accomplishing these actions. If competition is not planned, provide rationale. Address efforts to ensure competition for followon acquisitions for spare parts and for operation and maintenance of the delivered system. Also include a discussion on available break out data.

XII. CONTRACTING OFFICER'S CERTIFICATION Use the following statement:

The contracting officer's signature on the Justification Review Document evidences that he/she has determined this document to be both accurate and complete to the best of his/her knowledge and belief.

XIII. TECHNICAL/REQUIREMENTS PERSONNEL'S CERTIFICATION Use the following statement:

"As evidenced by their signatures on the Justification Review Document, the technical and/or requirements personnel have certified that any supporting data contained herein, which is their responsibility is both accurate and complete."

Figure 5306-4

JUSTIFICATION REVIEW DOCUMENT

AFMC Contracting Activity:

PR Number (if desired):

PROGRAM/PROGRAM ELEMENT:

PROGRAM COST ESTIMATE:

AUTHORITY: 10 USC 2304(C) ....., as implemented by FAR 6.302-.....

PROGRAM MANAGER/REQUIREMENT INITIATOR: *

CONTRACTING OFFICER: *

LOCAL/PRINCIPAL COMPETITION ADVOCATE: *

LOCAL LEGAL REVIEWER: *

CHIEF OF THE CONTRACTING OFFICE: *

BUYING OFFICE CONTRACTING OFFICIAL (if a PEO program): *

SENIOR CENTER/LABORATORY CONTRACTING OFFICIAL (if a DAC program or Other Contracting): * (See note 2 below)

See NOTE 1 Below: *

NOTE 1: Required Signature level:

PROGRAM EXECUTIVE OFFICER (if a Major or Selected Program)

TECHNICAL EXECUTIVE OFFICER (if Science & Technology Other Contracting)

DESIGNATED ACQUISITION COMMANDER (if a Major Program not assigned a PEO or Other Program)

IF OTHER CONTRACTING: Logistics Center/CC or CV/CD

Product Center/CC or CV/CD

PL and RL/CD

AFDTC and AFFTC/CC or CV

AFOSR/CC

SMC/CC or CV for BMO

ASC/CC or CV for WL HQ AFMC/PK for AEDC and AGMC

NOTE 2: AFOSR/PK will sign as the SCCO.

* (Typed name/office/phone number/date/signature)

5307.103 Agency-head responsibilities.

(g)(8)(90) AP updates. AP updates are processed after AP approval has been obtained. The PCO and SM/FD shall revise the AP (for informational purposes only) to describe minor administrative program changes that make the AP no longer reasonably and fairly descriptive of the acquisition. For example, change in the item description, nomenclature, or other administrative matters. AP updates should include a clear description of each changed sentence or paragraph; an explanation of the reason and significance of the change; and AP replacement pages. AP updates for Major/Select, Other Programs and Other Contracting actions requiring SPE approval shall be sent directly to SAF/AQCS.

(g)(8)(91) AP amendments. AP amendments shall be processed after AP approval when significant program changes occur which exceed authority granted in the FAAA. Examples include but are not limited to changes in contract type, significant changes in quantity, changes in scope or work required, period of performance or funding requirements. AP Amendments should also be processed to satisfy exceptions noted in the FAAA in accordance with AFFARS 5306.304(a)(4)(90). AP amendments for Major/Select, Other Programs and Other Contracting actions requiring SPE approval shall be sent directly to SAF/AQCS.

AP Amendments must contain:

(A) A signed cover sheet (Figure 5307-1) with the basic AP number and sequential amendment number designation;

(B) For minor revisions, a clear description of each changed sentence or paragraph; an explanation of the reason for and significance of the changes; AP replacement pages;

(C) For major revisions, an entire amended AP; a "Changes Made by Amendment X to AP Y" document summarizing the changes.

5315.611 Best and final offers.

(c)(i)(B) The SSA shall submit requests for second or subsequent Best and Final Offers (BAFOs) for Other Contracting using formal source selection procedures to HQ AFMC/PKP for processing to AFMC/CC. Authority to approve requests for second or subsequent best and final offers is delegated to the chief of the contracting office for competitive negotiated Other Contracting actions using other than formal source selection procedures. Science and technology source selections conducted pursuant to Section F of AFMCFARS Appendix BB are considered other than formal. This authority is not redelegable.

Atch 2

5315.804-1 Prohibition on obtaining cost or pricing data.

(b)(5) Exceptional cases.

(90) Process waiver requests for Other Contracting through AFMC/PK for approval by AFMC/CC, the AFMC HCA.

Atch 3

5316.203-4 Contract clauses.

(d)(2)(iv) Delete in its entirety.

Atch 4

PART 5332--CONTRACT FINANCING

SUBPART 5332.5--PROGRESS PAYMENTS BASED ON COSTS

5332.501-2 Unusual progress payments.

The contracting officer shall submit requests for unusual progress payments to SAF/AQCP.

Atch 5

PART 5332--CONTRACT FINANCING

SUBPART 5332.6--CONTRACT DEBTS

5332.613 Deferment of collection.

The recipient office shall forward requests for deferment of contract debts to AFMC/PK with an evaluation of the contractor’s proposal including the necessary reporting information and the contracting officer’s recommendation. AFMC/PK will submit the request to SAF/FMPB.

Atch 6

PART 5333--PROTESTS, DISPUTES, AND APPEALS

SUBPART 5333.1--PROTESTS

5333.103 Protests to the Agency.

(b) The authority to deny protests lodged at or below the field activity is delegated to field activity commanders with authority to redelegate not lower than the Buying Office Contracting Official (BOCO). The contracting officer shall prepare the written response and provide any necessary supporting documentation.

(c) In cases where a protest before award has been lodged and decided at the field level, and the protester indicates an intention to file with GAO, the field activity, before making an award, shall contact HQ AFMC/PKP to determine if a protest has actually been filed.

5333.104 Protests to GAO.

(a) General procedures.

(1) Notice of GAO protests.

(90) Protest points of contact.

(A) HQ AFMC/PKP is the Command protest OPR.

(B) Each AFMC contracting activity will establish a protest point of contact and an alternate to receive notifications of new protests and to maintain internal data on all GAO protests received.

(2) Agency reports.

(i) Transmittal of agency reports.

(A)(90) The Senior Center Contracting Official, or the Chairman of the Contract Review Committee if so designated, shall review all GAO protest agency reports and sign the transmittal letter incorporating the recommenda-tion on adjudication of the protest. The SCCO may redelegate this respons-ibility to a subordinate Senior Laboratory Contracting Official. Send copies of the agency report as directed by AFFARS 5333.104-90(a)(2)(iii) and simultaneously forward two copies of the contracting officer's statement of facts, and the memorandum of law by pouch or first class mail to the

HQ AFMC/PKP protest POC. The protest POC will distribute one copy to the cognizant HQ AFMC/PKP/PKO/PKT division chief and the other to HQ AFMC/JAQ.

HQ AFMC/PKP, PKO and PKT shall review protests annually using the protest letter, contracting officer’s statement of fact, memorandum of law, and GAO decision to determine if command action is required to change policy or implement training. For GAO protests which resulted in corrective action, the SCCO will forward an analysis of the corrective action taken to HQ AFMC/PKP. Corrective action analyses will be considered during the annual review.

Atch 7

(E)(90) The HQ AFMC/PKP address, telephone, and fax number are-

HQ AFMC/PKP

4375 Chidlaw Rd, Suite 6

Wright-Patterson AFB, OH 45433-5006

Telephone (513) 257-7066/DSN 787-7066 (Protest POC)

FAX (513) 476-1431/DSN 986-1431

(b) Protests before award.

(1) Authorization requests

(B)(90) For Major/Selected, and Other Programs submit requests to award in the face of a GAO protest to SAF/AQCX in accordance with AFFARS 5333.104(b). For Other Contracting requests, submit to HQ AFMC/PKP 14 days before the required award date. The request package shall include a complete, fully supported, unsigned D&F in accordance with FAR 33.104(b)(1). See FAR 33.104(b)(1)(B) and AFFARS 5333.104-90(b)(1)(B) for the information to be included in the D&F. See figure 5333.1 for the D&F format. Other Contracting requests must be signed by the official identified in AFFARS 5333.104(b)(1)(A) before sending to HQ AFMC/PKP.

(c) Protests after award.

(2)(90) For Major/Selected or Other Programs, submit requests to continue contract performance in the face of a GAO protest to SAF/AQCX in accordance with AFFARS 5333.104-90(c). For Other Contracting requests, submit to

HQ AFMC/PKP. The request shall include a complete, fully supported, unsigned D&F in accordance with FAR 33.104-90(c)(2). See FAR 33.104(c) and AFFARS 5333.104-90(b)(1)(B)(I), (II), (IV), (V), (VI), (VII) and AFFARS 5333.104-90(c) for the information to be included in the finding. See Figure 5333.1 for the format. Requests must be signed by the official identified in AFFARS 5333.104-90(c)(2) before sending to HQ AFMC/PKP.

5333.105 Protests to GSBCA.

(c) The cognizant field activity legal office (JA) shall send a copy of the protest to HQ AFMC/JAS by the date a draft answer or information in support of an answer is sent to SAF/GC. At the same time the required materials (AFFARS 33.105(c)) are sent to SAF/GC, forward to HQ AFMC/JAS copies of the following: (i) the draft answer to the complaint, or if none is prepared, sufficient information to let HQ AFMC/JAS know the nature of the answer; and (ii) any memoranda of law or recommended pleadings or motions sent to SAF/GC. After discussions with the field activity JA, HQ AFMC/JAS may request other documents. The field activity JA will inform HQ AFMC/JAS of the progress of the protest, including suspension hearings, hearings on the merits, and decisions or awards.

FIGURE 5333-1

Determination and Finding

[Authority to Award Contract]

or

[Authority to Resume Contract Performance]

Upon the basis of the following finding, contract award may be made [or work may be resumed under the contract] notwithstanding the GAO protest pursuant to the authority of Federal Acquisition Regulation, 33.104(b)(1).[If resumption, use 33.104(c)(2)(i) or (ii).]

Finding

1. [Provide brief history of the acquisition, giving a short description of the services or product to be acquired, important dates, and names of companies involved. Note any particulars, i.e., small business issues, special circumstances, etc.]

2. [Use this paragraph to synopsize the protest. As the continuation or resumption will not be authorized by the HCA without indications that the protest is not sustainable, it is imperative that the buying office provide a succinct analysis of the protest issue.]

3. [State in strongest terms possible, the impact to mission accomplishment that will be incurred if contract issuance or resumption is not authorized. This portion should be drawn almost exclusively from the input submitted by the requirements office. Create a short subparagraph for each impact or negative event. Address the options available (i.e., extension of existing contract, if follow-on effort; no performance; government accomplishment of requirement; etc.) This paragraph is the prime determination for the HCA decision and must stand up to judicial review. Information required by AFFARS 5333.104(1)(B)(iii) and (iv) is included here.]

NOTE: Above information is not restricted to 3 paragraphs. However, all data must be factual and as objective as possible. Do not include personal or organizational "desires" or sentiments.

Determination

Based on above, I have determined that (urgent and compelling circumstances exist which justify the award or continued contract performance of) (it is in the Government's best interest to authorize resumption of performance under) the contract with (name of contractor).

PART 5342--CONTRACT ADMINISTRATION

SUBPART 5342.7 INDIRECT COST RATES

5342.770-3 Waiver of certification.

Forward requests for Secretarial waiver to SAF/AQCP for processing through SAF/AQ to SAF/OS.

Atch 8

5346.770 Warranties in weapon system acquisitions.

AFM 64-110, prescribes requirements for Air Force acquired and administered weapon system warranties.

5346.770-2 Policy.

(90) Weapon system determination. The approval authority for the determination that an item does not fall under the definition of a weapon system (DFARS 246.770-1) for Major/Selected programs shall be the cognizant PEO, and for other programs, the cognizant DAC. Obtain legal and the Buying Office Contracting Official (BOCO) coordination on the determination and include in the contract file.

5346.770-3 Tailoring warranty terms and conditions.

When negotiating a contractor liability cap for a warranty, the ceiling must be fixed high enough to ensure that the contractor is responsible for correction of any major defect of the warranted item. For example, if the government buys 100 units at a unit price of $2 million, a cap of $400,000 will probably not cover the cost of correcting a major defect in each unit. Conversely, when negotiating threshold warranties, contracting officers must ensure thresholds are established low enough that the contractor accepts the risk for failures/defects beyond the projected reliability established in the contract requirements.

5346.770-5 Exemption for alternate source.

Delete in its entirety.

5346.770-7 Cost-Benefit Analysis (CBA)

AFI 65-501, Economic Analysis, prescribes requirements for warranty economic analyses (i.e., cost benefit analyses). A CBA is based on the life cycle cost of the system or item, with and without a warranty. It includes the costs to acquire and operate a system over its lifetime. The life cycle price of a system with a warranty is the warranty price, plus warranty administration costs, plus all other life cycle costs of the system.

5346.770-8 Waiver and notification procedures.

(90) HQ AFMC/PK is the deviation authority for requirements peculiar to AFM 64-110. The content of deviation packages should be as described at DFARS 246.770-8(c)(1).

5346.770-90 Air Force warranty procedures.

(a) Planning. The official contract file for all weapon system acquisitions for which warranties are required according to 10 U.S.C. 2403 shall include the signed, coordinated and approved weapon system warranty plan.

Atch 9

(c) Warranty administration. Effective warranty administration depends upon developing enforceable provisions. Each warranty is tailored to a unique unit or weapon system which causes administration procedures to vary. The CO shall coordinate the proposed warranty clause with the administering activity and document the file that this has occurred. If needed, prepare a Memorandum of Understanding (MOU) between the buying and administering activities when the warranty plan is prepared. Address the following administrative responsibilities and actions in the MOU as to who will:

(1) Review the warranty terms and conditions with the contractor to ensure all procedures are thoroughly understood;

(2) Track the warranted unit through the supply and maintenance system;

(3) Determine if a warranted unit has failed or is defective; and how failure/defect is determined;

(4) Write the disposition instructions for a failed unit under warranty;

(5) Determine contractor compliance with the EPRs and what actions are taken if the contractor is in non-compliance;

(6) Prepare the warranty failure analysis report;

(7) Review the contractor internal warranty policy and procedures;

(8) Track contractor warranty repairs, turnaround time and costs;

(9) Adjust the contract when the Government takes corrective action and requires the contractor to pay for corrections;

(10) Collect and maintain data on systems or unit performance; and how will defects and failures data be fed back into the system for possible improvement or implementation of an engineering change proposal. If there is no warranty clause or MOU coordination, give a debriefing to the administering activity on the warranty terms and conditions and the role of the administration office in the warranty process.

5346.770-91 Establishing essential performance requirements.

(a) Authority to designate EPRs is delegated to the PEO for Major/Selected programs and to the DAC for other programs.

(b) Establish EPRs based on the performance specification and those characteristics that are critical to the weapon system's mission. Only those contract specification requirements that cannot be verified during acceptance testing shall be considered for selection as an essential performance requirement.

(90) The program director shall determine if the originally established and approved EPRs are still appropriate for follow-on production buys. Over time it may be prudent to adjust or change some EPRs. If EPRs need to be changed, send the new EPR determination and recommendation to the original approval authority for reapproval. The contract file for a follow-on shall have the:

(1) Program director's determination; and

(2) Relevant previously granted EPR approval, if the program director determines the EPRs are still appropriate; or

(3) PEO or center command/vice commander approval.

5346.770-92 Warranty clauses.

Each warranty clause must be tailored to the specific acquisition. The clauses at FAR 52.246-17, -18, and -19 are baselines that may be used in weapon system contracts when the EPR portion of a weapon system warranty has been waived. When creating warranty clauses, COs will consider the guidelines in AFM 64-110, Attachment 6.