This part sets forth (a) the basic requirements for procurement of supplies (including construction) and services by formal advertising, (b) the information to be contained in solicitations of bids, (c) methods of soliciting bids, (d) policies with respect to the submission of bids, and (e) requirements with respect to the opening and evaluation of bids and the awarding of contracts.

[25 F.R. 14112, Dec. 31, 1960]

Subpart A-Use of Formal Advertising § 2.101 Meaning of formal advertising.

Formal advertising means procurement by competitive bids and awards as prescribed in this section, and involves the following basic steps:

(a) Preparation of the invitation for bids, describing the requirements of the Government clearly, accurately, and completely, but avoiding unnecessarily restrictive specifications or requirements which might unduly limit the number of bidders. The term "invitation for bids" means the complete assembly of related documents (whether attached or incorporated by reference) furnished prospective bidders for the purpose of bidding;

(b) Publicizing the invitation for bids, through distribution to prospective bidders, posting in public places, and such other means as may be appropriate, in sufficient time to enable prospective bidders to prepare and submit bids before the time set for public opening;

(c) Submission of bids by prospective contractors, and

(d) Awarding the contract, after the bids are publicly opened to that responsible bidder whose bid, conforming to the invitation for bids, will be most advantageous to the Government, price and other factors considered. [25 F.R. 14113, Dec. 31, 1960] § 2.102

Policy.

quirement, procurements shall generally be made by soliciting bids from all qualified sources of supplies or services deemed necessary by the contracting officer to assure full and free competition consistent with the procurement of the required supplies or services. Current lists of bidders shall be maintained by each purchasing office in accordance with § 2.205.

(b) 10 U.S.C. 2306(f) provides that a contractor or subcontractor shall be required to submit cost or pricing data for certain contract modifications, and shall be required to certify that, to the best of his knowledge and belief, the cost or pricing data he submitted was accurate, complete, and current. To insure compliance with this requirement, contracting officers shall follow the instructions set forth in § 3.807-3 of this chapter before agreeing to a price adjustment of a formally advertised contract.

[28 F.R. 2093, Mar. 5, 1963, as amended at 29 F.R. 6913, May 27, 1964]

§ 2.102-2 Classified procurements.

Formal advertising shall be used for classified procurements provided, its use does not violate Departmental security requirements (see 1-201.22). [31 F.R. 1040, Jan. 27, 1966]

§ 2.103 General requirements for formal advertising.

No award shall be made as a result of formal advertising unless:

(a) Bids have been solicited as required by Subpart B of this part;

(b) Bids have been submitted as required by Subpart C of this part:

(c) Such business clearances and approvals as are required by Departmental procedures have been obtained; and

(d) The award is to the responsible bidder (see § 1.902 of this subchapter) whose bid is responsive to the invitation for bids and is most advantageous to the Government, price and other factors considered, as prescribed in Subpart D of this part.

[25 FR. 14113, Dec. 31, 1960]

with escalation may be used where some flexibility is necessary and feasible. [25 F.R. 14113, Dec. 31, 1960]

§ 2.104-2 Firm fixed-price contracts. See § 3.404-2 of this subchapter. [25 F.R. 14113, Dec. 31, 1960, as amended at 27 F.R. 4015, Apr. 27, 1962]

§ 2.104-3 Fixed-price contracts with escalation.

Escalation clauses are not normally desirable, but in appropriate cases clauses providing for upward and downward revision of prices may be used, in accordance with § 3.404-3 of this subchapter, in order to protect the interest of both the Government and supplier. In addition, where the contracting officer on the basis of his knowledge of the market or previous advertisements for like items, except that a requirement for firm fixed-price bids will unnecessarily restrict competition, or unreasonably increase bid prices, invitations for bids may include an escalation clause. The clause set forth in § 7.106-1 or that in § 7.106-2 of this subchapter shall be used if applicable. If neither of these clauses is applicable, an escalation clause approved by the Department concerned may be included. Any escalation clause shall provide an escalation ceiling identical for all bidders so that each bidder is afforded an equal opportunity to bid on the escalation basis. In evaluating bids, see § 2.407-4.

[25 F.R. 14113, Dec. 31, 1960, as amended at 27 F.R. 4015, Apr. 27, 1962] § 2.104-4

tracts.

Indefinite delivery type con

(a) Definite quantity contracts. See § 3.409-1.

(b) Requirements contracts. See § 3.409-2.

(c) Indefinite quantity contracts. See $3.409-3.

[30 F.R. 14889, Dec. 2, 1965]

§ 2.105 Solicitation for informational or planning purposes.

See 1.309 of this subchapter. Subpart B-Solicitation of Bids § 2.200 Scope of subpart.

This subpart sets forth procedures for the solicitation of bids. Forms used in inviting bids are prescribed in subparts A and D, part 16 of this chapter. Invita

tions for bids shall contain the applicable information described in § 2.201 and any other information required for a particular procurement. All such information shall be set forth in full in the solicitation rather than incorporated by reference, except that:

(a) Standard Forms consisting of general provisions (contract clauses) may be incorporated by reference to the form number, form name, and edition date: Provided, The instructions for use of the form do not prohibit incorporation of the form by reference; and

(b) Other contract clauses set forth in Part 7 of this chapter may be incorporated by reference if authorized by § 7.001 of this chapter.

No other contract clauses shall be incorporated by reference. Pen and ink entries, deletions, or alterations shall not be made in an invitation for bids after it has been reproduced for issue to prospective bidders. If a change is necessary after reproduction of the invitation for bids, the Standard Form 30 (Amendment of Solicitation/Modification Contract) shall be used (see § 16.101 of this chapter), except that its use for construction contracts is optional (see § 16.401-1(i) of this chapter). [36 F.R. 7912, Apr. 28, 1971]

of

contracts.

(a) Supply and services For supply and services contracts, invitations for bids (Standard Form 33) shall contain the following information if applicable to the procurement involved. For construction contracts, see paragraph (b) of this section. Procurements of ship construction including shipbuilding, conversion, and repair; procurements for which special contract forms inconsistent herewith are prescribed by this subchapter, e.g., those prescribed by Subpart E, Part 16 of this chapter; and procurements of subsistence must contain all applicable items but such items need not be set forth in the Uniform Contract Format described below. The following subparagraphs are grouped so as to conform to the Uniform Contract Format (including the Table of Contents) set out below and prescribed in § 16.104-1 of this chapter. All items of information shall be set forth in the appropriate sections of the contract.

(1) Section A-Cover Sheet (DD Form 1707, Information to Offerors).

(2) Section B-Contract form and Representations, Certifications, and Other Statements of Offeror.

(1) Standard Form 33 (Solicitation, Offer, and Award). Instructions for filling out this form are in §§ 16.104-1 and 16.104-2 of this chapter;

(ii) When considered necessary by the contracting officer to prevent practices prejudicial to fair and open competition, such as improper kinds of multiple bidding, a requirement that each bidder submit with his bid an affidavit concerning his affiliation with other concerns. To accomplish the foregoing, the following clause shall be included in this section B. Failure to furnish such affidavit shall be treated as a minor informality or irregularity (see § 2.405).

AFFILIATED BIDDERS (JANUARY 1961)

(a) Business concerns are affiliates of each other when either directly or indirectly (1) one concern controls or has the power to control the other, or (ii) a third party controls or has the power to control both.

(b) Each bidder shall submit with his bid an affidavit containing information as

follows:

(i) Whether the bidder has any affiliates; (ii) The names and addresses of all affiliates of the bidder; and

(iii) A statement as follows:

This procurement is not set aside for labor surplus area concerns. However, the bidder's status as such a concern may affect entitle

66-070-72-13

ment to award in case of tie bids or bid evaluation in accordance with the Buy American clause of this solicitation. In order to have his entitlement to a preference determined if those circumstances should apply, the bidder must:

(1) Furnish with his bid evidence that he or his first-tier subcontractor is a certifiedeligible concern with a first preference in accordance with 29 CFR 8.7(b) and 8.9 (c) or a certified-eligible concern with a second preference in accordance with 29 CFR 8.7 (c) and 8.9 (d), and identify below the address at which the costs he will incur on account of manufacturing or production (by himself if a certified concern or by certified concerns acting as first-tier subcontractors) amount to more than 25 percent of the contract price,

Failure to furnish evidence of certification by the Secretary of Labor if applicable, and to identify the locations as specified above will preclude considerations of the bidder as a labor surplus concern. Bidder agrees that if, as a labor surplus area concern, he is awarded a contract for which he would not have qualified in the absence of such status, he will perform the contract or cause it to be performed, in accordance with the obligations which such status entails. (1970 September)

(iv) When need for the purpose of bid evaluation, preaward surveys, or inspection, a requirement that all bidders state the place (including the street address) from which the supplies will be furnished or where the services will be performed. Where it is reasonably anticipated that producing facilities will be used in the performance of the contracts, or where Government requires the information, bidders will be required to state (a) the full address of principal producing facilities (if designation of such address is not feasible, a full explanation will be required), and (b) names and addresses of owner and operator if other than bidder; (v) If the contract is for the Military Assistance Program, the certificate set forth in § 6.703-3 of this chapter;

(vi) If the contract is pursuant to the Balance of Payments Program, the Certificate set forth in § 6.806-3 of this chapter;

(vii) unless exempted by § 12.805 of this chapter from inclusion of the Equal Opportunity clause, the representations set forth in § 12.806 (b);

Certification of Nonsegregated Facilities. (Applicable to contracts, subcontracts, and to agreements with applicants who are themselves performing federally assisted construction contracts, exceeding $10,000 which are not exempt from the provisions of the Equal Opportunity clause.) By the submission of this bid, the bidder, offeror, applicant, or subcontractor certifies that he does not maintain or provide for his employees any segregated facilities at any of his establishments, and that he does not permit his employees to perform their services at any location, under his control, where segregated facilities are maintained. He certifies further that he will not maintain or provide for his employees any segregated facilities at any of his establishments, and that he will not permit his employees to perform their services at any location, under his control, where segregated facilities are maintained. The bidder, offeror, applicant, or subcontractor agrees that a breach of this certification is a violation of the Equal Opportunity clause in this contract. As used in this certification, the term "segregated facilities" means any waiting rooms, work areas, rest rooms and wash rooms, restaurants and other eating areas, time clocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees which are segregated by explicit directive or are in fact segregated on the basis of race, creed, color, or national origin, because of habit, local custom or otherwise. He further agrees that (except where he has obtained identical certification from proposed subcontractors for specific time periods) he will obtain identical certifications from proposed subcontractors prior to the award of subcontracts exceeding $10,000 which are not exempt from the provisions of Equal Opportunity clause; that he will retain such certifications in his files; and that he will forward the following notice to such proposed subcontractors (except where the proposed subcontractors have submitted identical certifications for specific time periods):

Notice to Prospective Subcontractors of Requirement for Certifications of Nonsegregated Facilities. A certification of Nonsegregated Facilities, as required by the May 9, 1967, order on Elimination of Segregated Facilities, by the Secretary of Labor (32 F.R. 7439, May 19, 1967), must be submitted prior to the award of a subcontract exceeding $10,000 which is not exempt from the provisions of the Equal Opportunity clause. The certification may be submitted either for each subcontract or for all subcontracts during a period (i.e., quarterly, semiannually, or annually). (March 1968)

(NOTE: The penalty for making false statements in offers is prescribed in 18 U.S.C. 1001.)

(viii) Any requirement for prior testing and qualification of a product, when the item to be purchased is on a qualified prod

ucts list (see Subpart K, Part 1 of this chapter);

(ix) When the contract is for the purchase of a patented item for which the Government is a licensee (§ 1.304-3 of this chapter), include a provision substantially as follows.

The Government is obligated to pay a royalty applicable to the proposed procurement because of a license agreement between the Government and the patent owner. The patent number is and the royalty rate

is. If the bidder is the owner of, or a licensee under the patent, he may so state in his bid, otherwise his bid will be evaluated by adding to his bid an amount equal to the royalty.

(x) When shipping weights and dimensions are required to evaluate offers as to transportation costs (see § 19.210 of this chapter), a provision substantially as set forth below shall be included in the solicitation, except that the paragraph relating to the Government's estimated weights and dimensions may be omitted when such estimates cannot reasonably be developed and the file is documented accordingly, prior to the issuance of the solicitation. Solicitations omitting the paragraph relating to the Government's estimated weights and dimensions shall state that the failure to furnish guar

anteed shipping weights and dimensions will render offers nonresponsive, unless the contracting officer determines that the shipping weights and dimensions involved would clearly not affect the standing of the bids. GUARANTEED MAXIMUM SHIPPING WEIGHTS AND DIMENSIONS

Each bid (or proposal) will be evaluated to the destination specified by adding to the f.o.b. origin price all transportation costs to said destination. The guaranteed maximum shipping weights and dimensions of the supplies are required for determination of transportation costs. The bidder (or offeror) is requested to state as part of his offer the weights and dimensions. If separate containers are to be banded and/or skidded into a single shipping unit, details must be described. If delivered supplies exceed the guaranteed maximum shipping weights or dimensions, the contract price shall be reduced by an amount equal to the difference between the transportation costs computed for evaluation purposes based on bidder's (or offeror's) guaranteed maximum shipping weights or dimensions and the transportation costs that should have been used for bid (or proposal) evaluation purposes based on correct shipping data.

To permit recoupment when the contractor exceeds the guaranteed maximum (s), the award document will show the weight(s) and dimensions used in the evaluation.

(xi) When a solicitation may result in an f.o.b. origin contract and the item to be purchased is new to the supply system, nonstandard, or a modification of previously shipped item such that a different freight classification may apply (e.g., contains new materials, ingredients, changed weight, cube, configuration, etc.) (see § 19.202(b) of this chapter), a provision as follows:

FREIGHT CLASSIFICATION DESCRIPTION
(JUNE 1968)

Bidders (or offerors) are requested to indicate, below, the full Uniform Freight Classification (rail) description, or the National Motor Freight Classification description applicable to the supplies, the same as bidder (offeror) uses for commercial shipment. This description should include the packing of the commodity (box, crate, bundle, loose, setup,

knocked down, compressed, unwrapped, etc.) the container material (fiberboard, wooden, etc.), unusual shipping dimensions, and other conditions affecting traffic descriptions. The Government will use these descriptions as well as other information available to it to determine the classification description most appropriate and advantageous to the Government. Bidder (offeror) understands that shipments on any f.o.b. origin contract awarded, as a result of this solicitation, will be made in conformity with the shipping classification description specified by the Government, which may be different from description furnished

the classification below.

For freight classification purposes, bidder (or offeror) describes this commodity as

(xii) When bids (or proposals) are to be solicited f.o.b. origin only and when it is desired that a bidder (offeror) be permitted to offer commercial transit credits (see