§ 1-1.314 Solicitations for informational or planning purposes. It is the general policy of the Government to solicit bids, proposals, or quotations only where there is a definite intention to award a contract. However, in some cases requests for informational or planning purposes may be justified. In such cases the request shall clearly state its purpose, explaining that the Government does not intend to award a contract on the basis of the request, or otherwise pay for the information solicited; but such statement does not prohibit the allowance, in accordance with § 1-15.205-3, of the cost of preparing such quotations. § 1-1.315 Use of liquidated damages provisions in procurement contracts. General. § 1-1.315-1 This 1-1.315 prescribes (a) policy which shall govern executive agencies in the use of liquidated damages provisions in contracts for supplies and serv→ ices, including construction, entered into by formal advertising or by negotiation, and (b) a provision which shall be inserted in contracts for supplies and services, other than construction, when liquidated damages are stipulated. § 1-1.315-2 Policy. (a) Liquidated damages provisions may be used only 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 damage if the delivery or performance is delinquent, and (2) the extent or amount of such damage would be difficult or impossible of ascertainment or proof. (b) In making decisions as to whether liquidated damages provisions are to be used, consideration should be given to their probable effect on such matters as pricing, competition, and the costs and difficulties of contract administration, as well as the availability of provision elsewhere in the contract for recovery of excess costs in termination cases. (c) The rate of liquidated damages stipulated must be reasonable in relation to anticipated damages, considered on a case-by-case basis, since liquidated damages fixed without any reasonable reference to probable damages may be held to be not compensation for anticipated damages caused by delay, but a penalty and therefore unenforceable. (d) 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 exercise its right to terminate as provided in 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. Efficient administration of contracts containing liquidated damages provisions is imperative to prevent undue loss to defaulting contractors and to protect the interests of the Government. (e) Whenever any contract includes a provision for liquidated damages for delay, the Comptroller General, on the recommendation of the head of the agency concerned, is authorized and empowered, by law, to remit the whole or any part of such damages as in his discretion may be just and equitable. § 1-1.315-3 Contract provisions. (a) Contracts for supplies or services. When a liquidated damages provision is to be used in a contract which is for supplies or services and which includes Standard Form 32, General Provisions (Supply Contract), the following provi sion shall be inserted in the invitation for bids and an appropriate rate(s) of liquidated damages (determined pursuant to § 1-1.315-2) shall be stipulated: LIQUIDATED DAMAGES Article 11(f) of Standard Form 32, General Provisions (Supply Contract), is redesignated as Article 11(g) and the following is inserted as Article 11(f): (f) (1) In the event the Government exercises its right of termination as provided in paragraph (a) above, the Contractor shall be liable to the Government for excess costs as provided in paragraph (b) above and, in addition, for liquidated damages, in the amount set forth elsewhere in this contract, as fixed, agreed, and liquidated damages for each calendar day of delay, until such time as the Government may reasonably obtain delivery or performance of similar supplies or services. (11) If the contract is not so terminated, notwithstanding delay as provided in paragraph (a) above, the Contractor shall continue performance and be liable to the Government for such liquidated damages for each calendar day of delay until the supplies are delivered or services performed. (iii) The Contractor shall not be liable for liquidated damages for delays due to causes which would relieve him from liability for excess costs as provided in paragraph (c) of this clause. (b) Contracts for construction. Liquidated damages provisions for construction contracts are contained in the Termination for Default-Damages for Delay-Time Extensions clauses of both Standard Form 19, Invitation, Bid, and Award (Construction, Alteration or Repair), and Standard Form 23A, General Provisions (Construction Contract). To make such provisions operative, an appropriate rate (s) of liquidated damages (determined pursuant to § 1-1.315-2) must be stipulated in the invitation for bids. § 1-1.316 Time of delivery or perform proposals. Time schedules for delivery or performance shall be designed to meet the requirements of the particular procurement, all relevant factors considered (see § 1-1.316-3), and must be realistic. Schedules which are unreasonably tight or difficult of attainment tend to restrict competition, are inconsistent with small business policies, and may result in higher contract prices. Therefore, before issuing an invitation for bids or request for proposals, the contracting officer shall question any delivery or performance schedule which appears unrealistic and, if necessary, initiate action to make appropriate adjustments. (b) Where timely delivery or performance is unusually important to the Government, a liquidated damages provision may be used as provided for in § 1-1.315. (c) Invitations for bids and requests for proposals shall, when appropriate, inform bidders or offerors of the basis on which their bids or proposals will be evaluated with respect to time of delivery or performance. § 1-1.316-3 Factors to be considered. Factors to be considered in establishing delivery or performance schedules may include one or more of the following: (a) Urgency of need for the property or services. (b) Production time due to quantity, complexity of design, etc. (c) Market conditions. (f) Capabilities of small business ceptance by the Government, or from date shown on contract document as effective date of contract); or (3) Specified periods from date of receipt by contractor of notice of award or acceptance by the Government (including notice by receipt of contract document executed by the Government). The full period which the Government holds out as being available for contract performance should not be curtailed to the prejudice of the contractor by delay in giving notice of award. Accordingly, one of the provisions in (b) or (c) of this § 1-1.316-4 shall be used in advertised precurements and may be suitably modified and used as appropriate in negotiated procurements. (b) Where the delivery schedule is expressed in terms of specific calendar dates (see (a) (1) of this § 1-1.316-4), invitations for bids shall include one of the following provisions: (1) The foregoing delivery requirements are based on the assumption that the Government will make award by (procuring activity insert calendar date). Each delivery date in the delivery schedule set forth herein will be extended by the number of calendar days after the above date that the contract is in fact awarded. Attention is directed to paragraph 8(d) of the Terms and Conditions of the Invitation for Bids, which provides that a written award mailed or otherwise furnished to the successful bidder results in a binding contract. Therefore, in computing the available time for performance, the bidder should take into consideration the time required for notice of award to arrive through the ordinary mails. (2) The foregoing delivery requirements are based on the assumption that the successful bidder will receive that notice of award by (procuring activity insert calendar date). The Government will extend each delivery date in the delivery schedule set forth herein by the number of calendar days after the above date that the contractor receives notice of award, if the contractor promptly acknowledges such receipt. (c) Where the delivery schedule is based on the date of contract (see (a) (2) of this § 1-1.316-4), the invitations for bids shall include the following provision: Attention is directed to paragraph 8(d) of the Terms and Conditions of the Invitation for Bids, which provides that a written award mailed or otherwise furnished to the successful bidder results in a binding contract. Any award hereunder, or a preliminary notice thereof, will be mailed or otherwise furnished to the bidder the day the award is dated. Therefore, in computing the time available for performance, the bidder should take into consideration the time required for the notice of award to arrive through the ordinary mails. However, a bid offering delivery based on date of receipt by the contractor of the contract or notice of award (rather than contract date) will be evaluated by adding the maximum number of days normally required for delivery of the award through the ordinary mails. If, as so computed, the delivery date offered is later than the delivery date required in the invitation, the bid will be considered nonresponsive and rejected. (d) Where the delivery schedule is based on the date of the contract (see (a) (2) and (c) of this § 1-1.316-4), the contract, notice of award, acceptance of proposal, or other contract document executed by the Government shall be mailed or otherwise furnished the contractor on the date shown thereon. (e) Where the delivery schedule is based on date of receipt by the contractor of notice of award (see (a) (3) of this § 1-1.316-4), or where it is expressed in terms of specific calendar dates on the assumption that notice of award will be received by a specified date (see (b) (2) of this § 1-1.316-4), the notice of award, acceptance of proposal, or other contract document executed by the Government shall be sent by certified mail, return receipt requested, or by any other appropriate method which will provide evidence of the date of receipt. (f) When the required delivery schedule in the invitation for bids is based on date of the contract (see (a) (2) of this § 1-1.316-4), a bid which offers delivery based on date of receipt by the contractor of the contract or notice of award (see (a) (3) of this § 1-1.316-4)— (1) Shall be evaluated by adding the maximum number of days normally required for delivery of the notice of award through the ordinary mails; and (2) If the delivery date offered by the bid (computed in accordance with (f) (1) of this § 1-1.316-4) is later than the delivery date required in the invitation for bids, the bid shall be considered nonresponsive and rejected; but (3) If award is made under (f) (1) of this § 1-1.316-4, under the terms of the contract the delivery date will be computed on the basis of the number of days after actual receipt by the contractor of the notice of award as specified in the bid. § 1-1.316-5 Time of delivery clauses. (a) Examples of time of delivery clauses for invitations for bids are set 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 conditions 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 other than for small purchases made in accordance with Subpart 1-3.6 and other than requests for technical proposals in connection with two-step formal advertising, involving firm fixedprice contracts and fixed-price contracts with escalation: CERTIFICATE OF INDEPENDENT PRICE DETERMINATION (a) By submission of this bid or proposal, each bidder or offeror certifies, and in the case of a joint bid or proposal each party thereto certifies as to its own organization, that in connection with this procurement: (1) The prices in this bid or proposal have been arrived at independently, without consultation, communication, or agreement, for the purpose of restricting competition, as to any matter relating to such prices with any other bidder or offeror or with any competitor; (2) Unless otherwise required by law, the prices which have been quoted in this bid or proposal have not been knowingly disclosed by the bidder or offeror and will not knowingly be disclosed by the bidder or offeror prior to opening, in the case of a bid, or prior to award, in the case of a proposal, directly or indirectly to any other bidder or offeror or to any competitor; and (3) No attempt has been made or will be made by the bidder or offeror to induce any other person or firm to submit or not to submit a bid or proposal for the purpose of restricting competition. (b) Each person signing this bid or proposal certifies that: (1) He is the person in the bidder's or offeror's organization responsible within that organization for the decision as to the prices being bid or offered herein and that he has not participated, and will not participate, in any action contrary to (a) (1) through (a) (3) above; or (2) (i) He is not the person in the bidder's or offeror's organization responsible within that organization for the decision as to the prices being bid or offered herein but that he has been authorized in writing to act as agent for the persons responsible for such decision in certifying that such persons have not participated, and will not participate, in any action contrary to (a) (1) through (a) (3) above, and as their agent does hereby so certify; and (ii) he has not participated, and will not participate, in any action contrary to (a) (1) through (a)(3) above. (c) This certification is not applicable to a foreign bidder or offeror submitting a bid or proposal for a contract which requires performance or delivery outside the United States, its possessions, and Puerto Rico. (d) A bid or proposal will not be considered for award where (a) (1), (a) (3), or (b) above has been deleted or modified. Where (a) (2) above has been deleted or modified, the bid or proposal will not be considered for award unless the bidder or offeror furnishes § 1-1.317 with the bid or proposal a signed statement which sets forth in detail the circumstances of the disclosure and the head of the agency, or his designee, determines that such disclosure was not made for the purpose of restricting competition. (b) The fact that a firm (1) has published pricelists, rates, or tariffs covering items being procured by the Government, (2) has informed prospective customers of proposed or pending publication of new or revised pricelists for such items, or (3) has sold the same items to commercial customers at the same prices being offered the Government does not constitute, without more, a disclosure within the meaning of paragraph (a) (2) of the Certificate. (c) It is not required that a separate written authorization be given to the signer of the bid or proposal for each procurement involved where the signer makes the certification provided in paragraph (b) (2) of the Certificate: Provided, That with respect to any blanket authorization given, (1) the procurement to which the Certificate applies is clearly within the scope of such authorization, and (2) the person giving such authorization is the person responsible within the bidder's or offeror's organization for the decision as to the prices being bid or offered at the time the Certificate is made in a particular procurement. (d) After the execution of an initial certificate and the award of a contract in connection therewith, the contractor need not submit additional certificates in connection with proposals submitted on "work orders" or similar ordering instruments issued pursuant to the terms of that contract, where the government's requirements cannot be met from another source. (e) The authority to make the determination described in paragraph (d) of the above certification shall not be delegated to an official below the level of the head of a procuring activity of the agency. (f) Where a certification is suspected of being false or there is indication of collusion, the matter shall be processed in accordance with Subpart 1-1.9 and appropriate agency procedures. For rejection of bids which are suspected of being collusive and for the negotiation of procurements subsequent to such rejection, see §§ 1-2.404-1(b) (6) and 1-3.214. [29 F.R. 10104, July 24, 1964, as amended at 30 F.R. 9589, July 31, 1965] |