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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 cloth

ing.

(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. § 1-1.307-6 Invitation for bids, "brand

name or equal" descriptions. (a) Except as provided in (b) of this $ 1-1.307-6 when a "brand name or equal” purchase description is included in an invitation for bids:

(1) The following shall be inserted after each item so described in the invitation, for completion by the bidder

Bidding on:
Manufacturer's name
Brand
No.......

(2) In addition, the following clause shall be included in the invitation:

BRAND NAME OR EQUAL (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

ictive, 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 included 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

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is a part of the description of an end shall be generally applicable to negotiitem.

ated procurements. (c) When an invitation for bids con (b) The clause set forth in § 1-1.307tains “brand name or equal" purchase 6(a)(2) may be adapted for use in nedescriptions, bidders who offer brand gotiated procurements. If use of the name products referenced in such de clause is not practicable (as may be scriptions shall not be required to fur- the case in exigency purchases), supnish bid samples of the referenced

pliers shall be suitably informed that brand name products; however, invita

proposals offering products different tions for bids may require the submis

from the products referenced by brand sion of bid samples in the case of bid

name will be considered if the conders offering “or equal” products.

tracting officer determines that the [29 FR 10104, July 24, 1964, as amended at

offered products meet fully the salient 38 FR 24210, Sept. 6, 1973)

characteristics requirements of the so

licitation. § 1-1.307-7 Bid evaluation and award, (c) In small purchases within open

"brand name or equal” descriptions. market limitations, such policies and (a) Bids offering products which procedures shall be applicable to the differ from brand name products ref. extent practicable. erenced in a “brand name or equal"

[29 FR 10104, July 24, 1964, as amended at purchase description shall be consid

38 FR 24211, Sept. 6, 1973) ered for award where the contracting officer determines in accordance with § 1-1.307-9 Inspection and acceptance. the terms of the clause in § 1-1.3076(a)(2) that the offered products meet

Inspection and acceptance of delivfully the salient characteristics re

eries shall be made on the basis of the quirements listed in the invitation. item described in the notice of award Bids shall not be rejected because of

and/or contract. minor differences in design, construction, or features which do not affect

88 1-1.308—1-1.310 (Reserved] the suitability of the products for

$ 1-1.311. Priorities, allocations, and allot. their intended use.

ments. (b) Award documents shall identify, or incorporate by reference an identi- In the interest of maintaining a fication of, the specific products which minimum priorities and allocations the contractor is to furnish. Such system as a mobilization preparedness identification shall include any brand measure, agencies shall require conname and/or make or model number, tractors to use ratings and allotment descriptive material, and any modifica- authority to support defense needs to tions of brand name products specified the extent required by regulations of in the bid. Included in this require the Business and Defense Services Adment are those instances where (1) the ministration, Department of Com. description of the end item contains merce. “brand name or equal" purchase de. scriptions or component parts or of ac- $ 1-1.312 [Reserved] cessories related to the end item and (2) the clause in § 1-1.307-6(a)(2) was $ 1-1.313 Records of contract actions. applicable to such component parts or Each contract file should contain accessories (see § 1-1.307-6(b)).

documentation of actions taken with [29 FR 10104. July 24. 1964. as amended at respect to each contract, including 38 FR 24211, Sept. 6, 1973)

final disposition. To the extent that

retained copies of documents do not $ 1-1.307-8 Procedure for negotiated pro- represent all actions taken, suitable curements and small purchases.

memoranda or a summary statement (a) The policies and procedures pre- of such undocumented actions should scribed in $$ 1-1.307-6 and 1-1.307-7 be prepared promptly and be retained for formally advertised procurements in the contract file.

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81-1.314 Solicitations for informational tion to anticipated damages, considor planning purposes.

ered on a case-by-case basis, since liq

uidated damages fixed without any It is the general policy of the Gov

reasonable reference to probable damernment to solicit bids, proposals, or

ages may be held to be not compensaquotations only where there is a defi

tion for anticipated damages caused by nite intention to award a contract.

delay, but a penalty and therefore unHowever, in some cases requests for in

enforceable. formational or planning purposes may be justified. In such cases the request

(d) Where a liquidated damages proshall clearly state its purpose, explain

vision is included in a contract and a ing that the Government does not

basis for termination for default intend to award a contract on the

exists, appropriate action should be basis of the request, or otherwise pay

taken expeditiously by the Governfor the information solicited; but such

ment to obtain performance by the statement does not prohibit the allow

contractor or to exercise its right to ance, in accordance with $ 1-15.205-3,

terminate as provided in the contract. of the cost of preparing such quota

If delivery or performance is desired tions.

after termination for default, efforts

must be made to obtain either delivery 81-1.315 Use of liquidated damages provi. or performance elsewhere within a sions in procurement contracts.

reasonable time. Efficient administra

tion of contracts containing liquidated § 1-1.315-1 General.

damages provisions is imperative to This $ 1-1.315 prescribes (a) policy prevent undue loss to defaulting conwhich shall govern executive agencies tractors and to protect the interests of in the use of liquidated damages provi the Government. sions in contracts for supplies and (e) Whenever any contract includes

ices including construction. en- a provision for liquidated damages for tered into by formal advertising or by delay, the Comptroller General, on negotiation, and (b) a provision which the recommendation of the head of shall be inserted in contracts for sup the agency concerned, is authorized plies and services, other than construc and empowered, by law, to remit the tion, when liquidated damages are whole or any part of such damages as stipulated.

in his discretion may be just and equi

table. § 1-1.315-2 Policy.

(a) Liquidated damages provisions § 1-1.315-3 Contract provisions. may be used only where both (1) the (a) Contracts for supplies or services. time of delivery or performance is When a liquidated damages provision such an important factor in the award is to be used in a contract which is for of the contract that the Government supplies or services and which includes may reasonably expect to suffer Standard Form 32, General Provisions damage if the delivery or performance (Supply Contract), the following prois delinquent, and (2) the extent or vision shall be inserted in the invitaamount of such damage would be diffi tion for bids and an appropriate cult or impossible of ascertainment or rate(s) of liquidated damages (deterproof.

mined pursuant to § 1-1.315-2) shall be (b) In making decisions as to wheth- stipulated: er liquidated damages provisions are to be used, consideration should be

LIQUIDATED DAMAGES given to their probable effect on such Article 11(f) of Standard Form 32, Genermatters as pricing, competition, and al Provisions (Supply Contract), is redesigthe costs and difficulties of contract nated as Article 11(g) and the following is administration, as well as the avail.

inserted as Article 11(f):

(f)(i) In the event the Government exerability of provision elsewhere in the

cises its right of termination as provided in contract for recovery of excess costs in

paragraph (a) above, the Contractor shall termination cases.

be liable to the Government for excess costs (c) The rate of liquidated damages as provided in paragraph (b) above and, in stipulated must be reasonable in rela addition, for liquidated damages, in the amount set forth elsewhere in this contract, als, the contracting officer shall quesas fixed, agreed, and liquidated damages for

tion any delivery or performance each calendar day of delay, until such time

schedule which appears unrealistic as the Government may reasonably obtain delivery or performance of similar supplies

and, if necessary, initiate action to or services.

make appropriate adjustments. (ii) If the contract is not so terminated,

(b) Where timely delivery or pernotwithstanding delay as provided in para formance is unusually important to graph (a) above, the Contractor shall con the Government, a liquidated damages tinue performance and be liable to the Goy. provision may be used as provided for ernment for such liquidated damages for

in § 1-1.315. each calendar day of delay until the supplies are delivered or services performed.

(c) Invitations for bids and requests (iii) The Contractor shall not be liable for

for proposals shall, when appropriate, liquidated damages for delays due to causes

inform bidders or offerors of the basis which would relieve him from liability for on which their bids or proposals will excess costs as provided in paragraph (c) of be evaluated with respect to time of this clause.

delivery or performance. (b) Contracts for construction. Liquidated damages provisions for construc

§ 1-1.316-3 Factors to be considered. tion contracts are contained in the Factors to be considered in establishTermination for Default-Damages for ing delivery or performance schedules Delay-Time Extensions clauses of both may include one or more of the follo Standard Form 19, Invitation, Bid, and ing: Award (Construction, Alteration or (a) Urgency of need for the property Repair), and Standard Form 23A, Gen- or services. eral Provisions (Construction Con- (b) Production time due to quantity, tract). To make such provisions opera complexity of design, etc. tive, an appropriate rate(s) of liquidat (c) Market conditions. ed damages (determined pursuant to (d) Transportation time. § 1-1.315-2) must be stipulated in the (e) Industry practices. invitation for bids.

(f) Capabilities of small business

concerns. § 1-1.316 Time of delivery or performance. (g) Time for obtaining and evaluat

ing bids or offers, and for awarding § 1-1.316-1 Scope and applicability.

contracts. This § 1-1.316 prescribes policy and (h) Time for contractors to comply procedure regarding requirements as with any conditions precedent to perto time for delivery or performance in formance. contracting for personal property or (i) Time for the Government to pernonpersonal services. This section does form its obligations under the contract not, however, apply to contracts for (e.g., furnishing of Government propconstruction.

erty to the contractor, approval or pre

production samples, and inspection). § 1-1.316-2 General. (a) The time of delivery or of per

§ 1-1.316-4 Terms. formance is an important element of a (a) Delivery schedules may be excontract and must be clearly set forth pressed in terms of in invitations for bids and requests for (1) Specific calendar dates (e.g., on proposals. Time schedules for delivery or before July 1, 1960); or performance shall be designed to (2) Specified periods from date of meet the requirements of the particu- contract (i.e., from date of award or lar procurement, all relevant factors acceptance by the Government, or considered (see § 1-1.316-3), and must from date shown on contract docube realistic. Schedules which are un ment as effective date of contract); or reasonably tight or difficult of attain (3) Specified periods from date of rement tend to restrict competition, are ceipt by contractor of notice of award inconsistent with small business poli- or acceptance by the Government (incies, and may result in higher contract cluding notice by receipt of contract prices. Therefore, before issuing an in document executed by the Governvitation for bids or request for propos- ment). 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 81-1.316-4), the invita tions 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 g 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.

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