225.7304 FMS customer involvement. ( a ) FMS customers may request that a defense article or defense service be obtained from a particular contractor. In such cases, FAR 6.302-4 provides authority to contract without full and open competition. The FMS customer may also request that a subcontract be placed with a particular firm. The contracting officer shall honor such requests from the FMS customer only if the LOA or other written direction sufficiently fulfills the requirements of FAR Subpart 6.3.
( b ) FMS customers should be encouraged to participate with U.S. Government acquisition personnel in discussions with industry to— ( 1 ) Develop technical specifications;
( 2 ) Establish delivery schedules;
( 3 ) Identify any special warranty provisions or other requirements unique to the FMS customer; and
( 4 ) Review prices of varying alternatives, quantities, and options needed to make price-performance tradeoffs.
( c ) Do not disclose to the FMS customer any data, including certified cost or pricing data, that is contractor proprietary unless the contractor authorizes its release.
( d ) Except as provided in paragraph (e)(3) of this section, the degree of FMS customer participation in contract negotiations is left to the discretion of the contracting officer after consultation with the contractor. The contracting officer shall provide an explanation to the FMS customer if its participation in negotiations will be limited. Factors that may limit FMS customer participation include situations where— ( 1 ) The contract includes requirements for more than one FMS customer;
( 2 ) The contract includes unique U.S. requirements; or
( 3 ) Contractor proprietary data is a subject of negotiations.
( e ) Do not allow representatives of the FMS customer to— ( 1 ) Direct the exclusion of certain firms from the solicitation process (they may suggest the inclusion of certain firms);
( 2 ) Interfere with a contractor's placement of subcontracts; or
( 3 ) Observe or participate in negotiations between the U.S. Government and the contractor involving certified cost or pricing data, unless a deviation is granted in accordance with subpart 201.4.
( f ) Do not accept directions from the FMS customer on source selection decisions or contract terms (except that, upon timely notice, the contracting officer may attempt to obtain any special contract provisions, warranties, or other unique requirements requested by the FMS customer).
( g ) Do not honor any requests by the FMS customer to reject any bid or proposal.
( h ) If an FMS customer requests additional data concerning FMS contract prices, the contracting officer shall, after consultation with the contractor, provide sufficient data to demonstrate the reasonableness of the price and reasonable responses to relevant questions concerning contract price. This data— ( 1 ) May include tailored responses, top-level pricing summaries, historical prices, or an explanation of any significant differences between the actual contract price and the estimated contract price included in the initial LOA; and
( 2 ) May be provided orally, in writing, or by any other method acceptable to the contracting officer.
[67 FR 70325, Nov. 22, 2002, as amended at 77 FR 76940, Dec. 31, 2012]