(2) Proposed fixed fees under costplus-a-fixed-fee contracts which exceed the following limitations shall be approved by the Assistant Secretary for Management or such other person as the Secretary may designate:

(i) Ten percent of the estimated cost, exclusive of fee, or any cost-plus-afixed-fee contract for experimental, developmental, or research work.

(ii) Seven percent of the estimated cost, exclusive of fee, of any other cost-plus-a-fixed-fee contract.

§ 34-3.408 Letter contract.

(a) Definition. A letter contract is a written preliminary contractual instrument which authorizes immediate commencement of work or services.

(b) Policy. The policy of the Department of Education is not to issue letter contracts. Exceptions to this policy will be permitted only in those cases where all matters of a substantive nature, such as statements of work, delivery schedules, and general and special clauses have been resolved and agreed upon.

(c) Application. A letter contract may be entered into only when: (1) The urgency of the requirement necessitates that the contractor be given a binding commitment so that work can commence immediately, (2) preparation of a definitive contract in sufficient time to meet Departmental requirements is not possible, and (3) prior approval has been obtained. (For approval levels, see paragraph (d) of this section.)

(d) Approval. Any letter contract must be approved by the Assistant Secretary for Management or such other person as the Secretary may designate.

(e) Limitations. (1) A letter contract shall not be entered into without competition when competition is practicable.

(2) A letter contract shall be superseded by a definitive contract at the earliest practicable date, but in no event later than 150 days after the date of execution of the letter contract.

(3) The maximum fund liability of the Government, stated in the letter contract, will be limited to only that

amount determined essential to cover the contractor's requirements for funds prior to definitization.

§ 34-3.450 Unauthorized types of agreements.

§ 34-3.450-1 Letters of intent.

(a) Description. A letter of intent is an informal, unauthorized agreement between the Government and a prospective contractor which indicates that products or services will be produced after completion of funding and/or other contractual formalities. Such letters of intent are often solicited by prospective contractors or may be originated by Government personnel.

(b) Policy. (1) The practice of issuing letters of intent is not authorized by the Federal Procurement Regulations and is therefore prohibited. ED personnel shall not issue such letters for the following reasons:

(i) While such letters of intent may disclaim Government liability, they may induce potential contractors to initiate costly preparations in anticipation of contract award.

(ii) Procurements announced in such letters do not always materialize. The result may be costly to the Government, the prospective contractor, or both. If the author of the letter of intent is an authorized contracting agent of the Department, the Government may be bound by the action, even though the action is contrary to sound procurement practices and/or fiscal regulations. If the author of the letter of intent lacks procurement authority, the prospective contractor may incur substantial expenditures for which the contractor may not recover from the Government, but for which the contractor may seek to hold the unauthorized author personally liable. (See Subparts 1-1.4, of this Title and 34-1.4 of this chapter.)

(iii) The issuance of a letter of intent may violate the “Anti-Deficiency Act” (31 U.S.C. 665).

(2) It is recognized that potential contractors have a need to obtain procurement information at the earliest possible moment in order to make timely preparations. To this end, procurement personnel are expected to

move as efficiently and expeditiously as possible on all procurement actions. It is not permissible, however, to issue letters of intent to circumvent the requirements of FPR and EDPR.

(c) Exceptions. The prohibition against letters of intent does not preIclude the award of contracts conditioned upon the availability of funds under conditions which warrant such contracts (see § 34-1.354 of this chapter).

§ 34-3.450-2 Memorandums of understanding.

(a) Description. A "memorandum of understanding" is an unauthorized agreement, usually drafted during the course of negotiations, to modify mandatory FPR and EDPR provisions in such a manner as to make them more acceptable to a prospective contractor. Such memorandums may bind the contracting officer and his successors not to exercise rights given the Government under the contract, or may contain other matters directly contrary to the language of the solicitation or prospective contractual document.

(b) Policy. Use of memorandums of understanding described in paragraph (a) of this section, is not authorized. Any change in a solicitation or contract shall be made by amendment or modification to that document. When a change to a prescribed contract clause is considered necessary, a deviation shall be requested.

Subpart 34-3.6-Small Purchases

§ 34-3.600 Scope of subpart.

This subpart prescribes the policies and procedures for purchases of supplies and nonpersonal services when the aggregate dollar amount in any one transaction does not exceed $10,000. Purchases not in excess of $10,000 which are accomplished in accordance with the policies and procedures of this subpart 34-3.6 shall be termed "small purchases." Small purchase methods included in this subpart include solicitations made either orally, or in writing using a SF-18, and award via Standard Form 147 (Order for Supplies or Services); Standard Form 44 (Purchase Order-Invoice

Voucher); Blanket Purchase Agreements (BPA), or Imprest Funds. Procurements not in excess of $10,000 which are accomplished by more formal negotiation methods other than those prescribed in this subpart and which are negotiated pursuant to 41 U.S.C. 252(c)(3), are also defined as small purchases. In arriving at the "aggregate dollar amount" involved, all supplies and services must be included which would be properly grouped together in a single advertisement for bids if the procurement were being effected by formal advertising. The amount of $10,000 includes the total price of the order including all estimated handling and freight charges to be paid to the prospective contractor. Requirements aggregating more than $10,000 shall not be broken down into several purchases which are $10,000 or less merely for the purpose of permitting negotiation or utilizing the small purchase methods authorized under §§ 1-3.6 and 34-3.6.

§ 34-3.601 Purpose and applicability.

(a) Purpose. The objective of the simplified small purchase methods prescribed herein is to reduce administrative costs to the extent possible within the limits of applicable laws and regulations.

(b) Applicability. (1) The policies and procedures in 1-3.6 and this subpart shall not be used for the following:

(i) Procurements which are accomplished through delivery orders issued under indefinite delivery contracts, e.g., definite quantity contracts, requirements contracts, and indefinite quantity contracts.

(ii) Procurements made by formal advertising or negotiation other than by § 1-3.203, which were initially estimated to exceed $10,000, but ultimately resulted in a preaward price of $10,000 or less.

(iii) Small purchases which are initially estimated not to exceed $10,000, but ultimately result in a preaward price in excess of $10,000. If the price exceeds $10,000, the authority of 41 U.S.C. 252(c)(3) may not be used.

(iv) Construction requirements estimated to exceed $2,000. However, if

the initial estimate is $2,000 or less but the ultimate preaward dollar amount resulting from quotations received exceeds $2,000, but does not exceed $2,500, award may be made pursuant to the policies and procedures of § 13.6, this subpart, and the authority in 41 U.S.C. 252(c)(3) which is permitted by § 1-18.302. (See § 1-18.3 for policies and procedures pertaining to the procurement of construction by negotiation.)

(v) Procurement of architect-engineer professional services of any dollar amount. (See §§ 1-4.10 and 1-16.7 for policies, procedures, and forms pertaining to the procurement of A & E services.)

(2) This subpart does not preclude the use of bilateral purchase orders, Standard Forms 19 and 19B for construction contracts under $2,000 (see § 1-16.402-1), or a negotiated two-party formal contract for procurement not in excess of $10,000 where the procurement requires a specific contract provision relating to technical inspection or test, specification changes, government furnished property, insurance, patents, price adjustments, or the like.

§ 34-3.602 Policy.

(a) Negotiation Authority. Negotiated contracts or purchases aggregating $10,000 or less shall be made under the authority of 41 U.S.C. 252(c)(3) and § 1-3.203 rather than under any of the other sections in § 1-3.2. For example, small purchases for expert or consultant services shall be made under 41 U.S.C. 252(c)(3) and 1-3.203 rather than 41 U.S.C. 252(c)(15) and 5 U.S.C. 3109, and small purchases which are set-aside for small business unilaterally or jointly shall be made under the authority of 41 U.S.C. 252(c)(3) and 13.203 rather than 41 U.S.C. 252(c)(1) or 41 U.S.C. 252(c)(15). The negotiation authority shall be cited on the face of the Standard Form 147.

(b) Placement of small purchases with small business concerns, labor surplus area concerns, and minority business enterprises shall be encouraged to the extent consistent with the objectives of this subpart. When source lists are maintained for procurements of $10,000 or less, these source lists should include known con

cerns in these categories. These concerns and enterprises shall be given opportunities, at least equal to other firms, to submit quotations in response to small purchase solicitations.

(c) Mandatory Sources. Purchases shall be made in the open market only when requirements cannot be satisfied by requisition or order from mandatory sources in accordance with Part 1-5 or Federal Supply Schedule contracts in accordance with FPMR 10126.4.

(d) Limitations on the use of Small Purchase Methods. (1) The contracting officer has the responsibility and authority to determine which purchase method is most suitable, efficient, and economical for use in meeting the immediate requirement.

(2) The small purchase methods are designed to procure defined, off-theshelf, standard supplies, equipments, or services which may be awarded on the basis of a fixed price quotation. Small purchase methods should not be used to procure R & D, complex studies, services, and the like (which require judgmental technical evaluations and involved negotiations) where the award cannot be confidently made on the low price. Where procurements are not suitable for accomplishment using small purchase methods more formal negotiation methods or formal advertising should be used.

(3) Small purchases accomplished in accordance with this subpart may not be awarded on a cost-reimbursement basis.

(4) Consultants. Small purchase methods should be used with great prudence for the procurement of consultants to avoid the increased possibility at the higher dollar level of $10,000, of using consultants in an improper personal service capacity.

(5) Delegations of contracting officer authority for small purchases may be selectively increased from $2,500 up to $10,000 provided purchasing agents have met the selection requirements and have a working knowledge of the requirements of this subpart. Personnel responsible for making and approving small purchases should acquire formal training in this area.

(a) Small purchases not exceeding $250 may be accomplished without securing competitive quotations where the prices are considered reasonable, but such purchases shall be distributed equitably among qualified suppliers. Records of purchases of $250 or less need not include justification for soliciting only a single source or a justification explaining how prices were determined to be reasonable. Operating agencies may reduce this limitation in accordance with agency requirements.

(b) For purchases between $250 and $2,500, solicitation generally may be limited to three suppliers.

§ 34-3.603-2 Data to support small purchases.

See § 1-3.603-2.

§ 34-3.603-50 Conduct of small purchases. (a) Purchases not in excess of $500. (1) Competition. Purchases not in excess of $500 may be accomplished without securing competitive quotations. Such purchases are exempt from 34-3.802-50 which requires a written justification for noncompetitive procurement. Purchases shall be distributed equitably among qualified sources. Purchases not in excess of $500 shall not be made repetitively to one source except for reasons which will clearly and convincingly justify a noncompetitive procurement in accordance with § 34-3.802-50. Where there are multiple sources available to provide an item or service, a quotation should be solicited from other than the previous source prior to placing a repeat order.

(2) Solicitation of Quotations. Quotations for purchases not in excess of $500 should usually be made orally but may be made in writing. If written solicitations are used, they must be accomplished in accordance with § 343.603-50(b)(6)(ii).

(3) Evaluation of price. The administrative cost of verifying the reasonableness of the price of purchases not in excess of $500 may more than offset potential savings in detecting instances of overpricing; therefore,

action to verify the reasonableness of the price need be taken only when the buyer or contracting officer suspects that, or has information to indicate that, the price may not be reasonable, e.g., comparison to previous price paid, personal knowledge of the item involved. No written determination as to the reasonableness of the price is required except in instances where there is serious doubt as to the reasonableness of the price.

(b) Purchases in excess of $500 up to $10,000. The following describes the major considerations and steps involved in making purchases in excess of $500 up to $10,000.

(1) Specification-statement of work. The purchase requirement as described in a specification or statement of work must be clear and complete. Clarity is important to achieve effective competition because it enables all potential quoters to reach a common understanding of the requirement. A complete expression of the Government's requirement reduces potential misunderstandings in competitive procurements and increases the probability that the Government will receive what is actually required.

(2) Notice of intention to make a service contract. The requirement in § 1-12.905-3 to forward a Standard Form 98, Notice of Intention to Make a Service Contract, to the Department of Labor for any contract exceeding $2,500 also applies to small purchases over $2,500.

(3) Competition. Solicitation of competitive quotations from a reasonable number of qualified sources of supply shall be made to assure that the procurement is to the advantage of the Government, price and other factors considered. Generally, three is a reasonable number of sources for purchases in excess of $500 but under $5,000. More than three sources may be solicited at the discretion of the contracting officer. A reasonable number of sources for purchases of $5,000 up to $10,000 is a minimum of three. A maximum number cannot be specified apart from considering the nature of the requirement to be purchased.

(4) Noncompetitive purchases. Purchases in excess of $500 up to $10,000

which are made noncompetitively require justification as to why competition was not obtained. The justification, which may be in the form of a statement in the request for contract or requisition must address the considerations in § 34-3.802-50. The contracting officer may approve or disapprove the justification. Award of the contract or purchase order up to $10,000 by the contracting officer shall constitute approval of the justification.

(5) Synopsis (1-1.10). Small purchases of $5,000 and above shall be synopsized in the Commerce Business Daily in accordance with § 1-1.10 unless one of the exceptions in § 11.1003-2 applies. Synopses shall be sent to the Commerce Business Daily and due dates for receipt of quotations shall be timed so that there is a reasonable time for potential quoters to request RFQ's and submit quotations. Generally the synopsis should be mailed to the Commerce Business Daily 10 days prior to but not later than the day the SF-18 is released. Approximately 30 days should be planned between publishing of the synopsis and the due date for receipt of quotations. The synopsis should contain notice that the requirement is a small purchase.

(6) Solicitation of quotations. (i) Solicitations for purchases under $5,000 may be solicited either orally or in writing. Data to support oral solicitations shall be in accordance with § 13.603-2. Written solicitations should be used when (A) the sources are located outside the local area, (B) special specifications are involved, (C) a large number of items are included in a single proposed procurement, or (D) obtaining oral quotations is not considered efficient. Written solicitations for purchases under $5,000 shall be prepared in accordance with the following paragraph § 34-3.603

50(b)(6)(ii).

(ii) Written solicitations should be used for all purchases estimated to be $5,000 up to $10,000. Standard Form 18, Request for Quotations, shall be used for written solicitation of quotations in accordance with § 1-16.201. Written competitive solicitations shall contain the following elements as a minimum.

(A) Specification or Statement of Work.

(B) Delivery schedule.

(C) Quantity.

(D) Add the clauses as required by § 34-3.605-2(b)(3) and (4).

(E) Add the Certifications and Representations as required by § 34-3.6052(b)(5).

(F) Cite the negotiation authority of 41 U.S.C. 252(c)(3).

(G) State the due date for receipt of quotations and include the provision prescribed by § 1-3.802-1 regarding consideration of late proposals.

(iii) Amendment of Request for Quotation-Prior to Closing Date.

(A) If after issuance of a request for quotations, but before the closing date of their receipt, it becomes necessary to make significant changes in quantity, specifications, delivery schedules or any change in closing dates, or to correct a defect or ambiguity, such change shall be accomplished by issuance of an amendment to the request. Requests for quotations using the SF18 may be amended by letter. Oral requests for quotations may be amended orally.

(B) When it is considered necessary to issue an amendment to a request for quotations, the period of time remaining before closing and the need for extending this period by postponing the time set for closing must be considered. Where only a short time remains before the time set for closing, extension of time may be made by telegram or telephone. Such notification should be confirmed in the amendent.

(C) Any information given to one potential quoter concerning a request for quotations shall be furnished promptly to all other potential quoters in an amendment to the request, if such information is necessary to potential quoters in submitting quotations, or if the lack of such information would be prejudicial to uninformed potential quoters.

(7) Late quotations. The policy of § 1-3.802-1, Consideration of Late Proposals, is made applicable by this regulation to written small purchase quotations received after the time set for receipt at the purchasing office. Any oral quotation received at the purchas