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(1) Construction or composition of the product to be procured is too technically involved;
(2) Public exigency or military necessity precludes timely development; or (3) It is impracticable or uneconomical to prepare a purchase description.
(b) When purchasing items for authorized resale, except military clothing.
(c) The product to be referenced must, in any event, be regularly offered for sale to the public.
(d) When a “brand name or equal" description is used, a notation shall be made in the case file as to the reasons therefor.
(As used in this clause, the term "brand name" includes identification of products by make and model.)
(a) If items called for by this invitation for bids have been identified in the schedule by a "brand name or equal" description, such identification is intended to be descriptive, but not restrictive, and is to indicate the quality and characteristics of products that will be satisfactory. Bids offering "equal" products (including products of the brand name manufacturer other than the one described by brand name) will be considered for award if such products are clearly identified in the bids and are determined by the Government to meet fully the salient characteristics requirements listed in the invitation.
(b) Unless the bidder clearly indicates in his bid that he is offering an “equal" product, his bid shall be considered as offering a brand name product referenced in the invitation for bids.
(c)(1) If the bidder proposes to furnish an "equal" product, the brand name, if any, of the product to be furnished shall be insert
ed in the space provided in the invitation for bids, or such product shall be otherwise clearly identified in the bid. The evaluation of bids and the determination as to equality of the product offered shall be the responsibility of the Government and will be based on information furnished by the bidder or identified in his bid as well as other information reasonably available to the purchasing activity. CAUTION TO BIDDERS. The purchasing activity is not responsible for locating or securing any information which is not identified in the bid and reasonably available to the purchasing activity. Accordingly, to insure that sufficient information is available, the bidder must furnish as a part of his bid all descriptive material (such as cuts, illustrations, drawings, or other information) necessary for the purchasing activity to (i) determine whether the product offered meets the salient characteristics requirement of the invitation for bids, and (ii) establish exactly what the bidder proposes to furnish and what the Government would be binding itself to purchase by making an award. The information furnished may include specific references to information previously furnished or to information otherwise available to the purchasing activity.
(2) If the bidder proposes to modify a product so as to make it conform to the requirements of the Invitation for Bids, he shall (i) include in his bid a clear description of such proposed modifications and (ii) clearly mark any descriptive material to show the proposed modifications.
(3) Modifications proposed after bid opening to make a product conform to a brand name product referenced in the Invitation for Bids will not be considered.
(b) Where a component part of an end item is described in the invitation for bids by a "brand name or equal" purchase description and the contracting officer determines that application of the clause in (a)(2) of this § 1-1.3076 to such component part would be impracticable, the requirements of (a)(1) and (2) of this § 1-1.307-6 shall not apply with respect to such component part. In such cases, if the clause is included in the invitation for bids for other reasons, there also shall be inIcluded in the invitation a statement identifying
either the component parts (described by "brand name or equal" descriptions) to which the clause applies or those to which it does not apply. This paragraph (b) also applies to accessories related to an end item where a "brand name or equal" purchase description of the accessories
is a part of the description of an end item.
(c) When an invitation for bids contains "brand name or equal" purchase descriptions, bidders who offer brand name products referenced in such descriptions shall not be required to furnish bid samples of the referenced brand name products; however, invitations for bids may require the submission of bid samples in the case of bidders offering "or equal" products.
[29 FR 10104, July 24, 1964, as amended at -38 FR 24210, Sept. 6, 1973]
§ 1-1.307-7 Bid evaluation and award, "brand name or equal" descriptions. (a) Bids offering products which differ from brand name products referenced in a "brand name or equal” purchase description shall be considered for award where the contracting officer determines in accordance with the terms of the clause in § 1-1.3076(a)(2) that the offered products meet fully the salient characteristics requirements listed in the invitation. Bids shall not be rejected because of minor differences in design, construction, or features which do not affect the suitability of the products for their intended use.
(b) Award documents shall identify, or incorporate by reference an identification of, the specific products which the contractor is to furnish. identification shall include any brand name and/or make or model number, descriptive material, and any modifications of brand name products specified in the bid. Included in this requirement are those instances where (1) the description of the end item contains "brand name or equal" purchase descriptions or component parts or of accessories related to the end item and (2) the clause in § 1-1.307-6(a)(2) was applicable to such component parts or accessories (see § 1-1.307-6(b)).
[29 FR 10104, July 24, 1964, as amended at 38 FR 24211, Sept. 6, 1973]
§ 1-1.307-8 Procedure for negotiated procurements and small purchases.
(a) The policies and procedures prescribed in §§ 1-1.307-6 and 1-1.307-7 for formally advertised procurements
shall be generally applicable to negotiated procurements.
(b) The clause set forth in § 1-1.3076(a)(2) may be adapted for use in negotiated procurements. If use of the clause is not practicable (as may be the case in exigency purchases), suppliers shall be suitably informed that proposals offering products different from the products referenced by brand name will be considered if the contracting officer determines that the offered products meet fully the salient characteristics requirements of the solicitation.
(c) In small purchases within openmarket limitations, such policies and procedures shall be applicable to the extent practicable.
[29 FR 10104, July 24, 1964, as amended at 38 FR 24211, Sept. 6, 1973]
§ 1-1.307-9 Inspection and acceptance.
Inspection and acceptance of deliveries shall be made on the basis of the item described in the notice of award and/or contract.
§§ 1-1.308-1-1.310 [Reserved]
§ 1-1.311 Priorities, allocations, and allotments.
In the interest of maintaining a minimum priorities and allocations system as a mobilization preparedness measure, agencies shall require contractors to use ratings and allotment authority to support defense needs to the extent required by regulations of the Business and Defense Services Administration, Department of Com
§ 1-1.312 [Reserved]
§ 1-1.313 Records of contract actions.
Each contract file should contain documentation of actions taken with respect to each contract, including final disposition. To the extent that retained copies of documents do not represent all actions taken, suitable memoranda or a summary statement of such undocumented actions should be prepared promptly and be retained in the contract file.
§ 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.
§ 1-1.315-1 General.
This 1-1.315 prescribes (a) policy which shall govern executive agencies in the use of liquidated damages provisions in contracts for supplies and services, 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 rela
tion 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 provision 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:
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)(i) 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.
(ii) 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 performance.
§ 1-1.316-1 Scope and applicability.
This § 1-1.316 prescribes policy and procedure regarding requirements as to time for delivery or performance in contracting for personal property or nonpersonal services. This section does not, however, apply to contracts for construction.
§ 1-1.316-2 General.
(a) The time of delivery or of performance is an important element of a contract and must be clearly set forth in invitations for bids and requests for 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 propos
als, 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 concerns.
(g) Time for obtaining and evaluating bids or offers, and for awarding contracts.
(h) Time for contractors to comply with any conditions precedent to performance.
(i) Time for the Government to perform its obligations under the contract (e.g., furnishing of Government property to the contractor, approval or preproduction samples, and inspection).
§ 1-1.316-4 Terms.
(a) Delivery schedules may be expressed in terms of
(1) Specific calendar dates (e.g., on or before July 1, 1960);
(2) Specified periods from date of contract (i.e., from date of award or acceptance 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 Gov
ernment 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 § 11.316-4)—
(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.