(b) In any given contract, separate completion periods may be established for separable items of work. Where such periods are shown, requests for extension of time must be evaluated with respect to each item, and the affected completion periods modified where appropriate.

§ 1-18.106 Minimum standards for responsible prospective contractors.

In evaluating the responsibility of a prospective contractor, the contracting officer shall consider whether a bid bond has been furnished and performance and payment bonds are to be furnished. Prior to underwriting bid, performance, and payment bonds, it is normal practice for each surety company to conduct a prequalification survey which examines, verifies, and evaluates the contractor's financial resources, technical expertise for the type of work involved, management and organization ability, current workload, and capability to complete the contract in the required time. Normally, the contracting officer is not expected to duplicate this effort in conducting the preaward survey, but should emphasize in addition thereto the evaluation of information which is uniquely available to the Government, such as the Joint Consolidated List of Debarred, Ineligible, and Suspended Contractors (see § 1-1.602 et seq.), contractor experience lists, and performance evaluations on present or previous contracts with the Government. More extensive preaward surveys should be conducted when the project requires unique or unusual construction expertise or when information available to the contracting officer indicates that the contractor may not be responsible (see § 1-1.1203, Minimum standards for responsible prospective contractors, for other pertinent factors). The responsibility for determining the extent to which a preaward survey is appropriate to the circumstances rests with the contracting officer. Where the prospective contractor is a joint venture, the sum of its financial resources and the individual capacities of all its members will be used in determining the responsibility of the joint venture.

[42 FR 56740, Oct. 28, 1977]

§ 1-18.107 Specifications.

(a) The technical provisions of construction specifications shall be in sufficient detail so that, when used with the applicable drawings, bids can be prepared by contractors, material suppliers, and manufacturers on a fair and competitive basis, and construction can be completed without additional construction specifications, except those necessary to deal with unforeseen conditions or to accomplish changes during construction. Materials and equipment shall be described, where possible, by reference to documents generally known to the industry. The use of specifications and standards shall be governed by §§ 11.305 and 1-1.306.

(b) When it is necessary to use "brand name or equal" descriptions in the specifications for descriptive purposes, the particular physical, functional, or other characteristics of the brand name item which are deemed essential to the needs of the procuring agency shall be clearly identified and described.

§ 1-18.108 Government estimates.

An independent Government estimate of construction cost in as much detail as in the case of a prospective contractor's bid shall be prepared for each proposed contract and, at the earliest practicable time, for each modification of an existing contract affecting price, anticipated to cost (in either instance) $10,000 or more. Where the anticipated cost is less than $10,000, the contracting officer, at his discretion, may require the preparation of an estimate. Except as may be permitted by agency regulations, access to, or disclosure of, information concerning the Government estimate shall be limited to Government personnel whose official duties require knowledge of the estimate.

§ 1-18.109 Disclosure of size of construction projects.

Where the estimated value of the work is $25,000 or more, advance notices or invitations for bids and requests for proposals shall include a statement of the magnitude in terms of physical characteristics of the pro

posed construction and by reference to the estimated price range (e.g. $500,000-$1,000,000). In no event shall such statement disclose the Government estimate.

§ 1-18.110 Liquidated damages.

(a) A liquidated damages clause may, in the discretion of the contracting officer, be included in construction contracts. See § 1-1.315. Where such a provision is used, the invitation for bids or request for proposals shall include a clause reading substantially as follows:

LIQUIDATED DAMAGES

In case of failure on the part of the Contractor to complete the work within the time fixed in the contract or any extensions thereof, the Contractor shall pay to the Government as fixed, agreed and liquidated damages, pursuant to the clause of this contract entitled "Termination for DefaultDamages for Delay-Time Extensions", the sum of $--- for each calendar day of delay.

(b) Where different completion periods for separate parts or stages of the work are specified in the contract, this clause should be revised appropriately to provide for liquidated damages for delay in completion of each separate part or stage of the work as to which delay in completion will result in damage to the Government.

(c) The minimum amount of liquidated damages should be based on the estimated cost of inspection and superintendence for each day of delay in completion. Whenever the Government will suffer other specific losses due to the failure of the contractor to complete the work on time, such as the cost of substitute facilities, the rental of buildings, or the continued payment of quarters allowances, an amount for such items should also be included.

(d) Contracting officers shall take all reasonable steps to mitigate liquidated damages. With respect to remissions of such damages, see § 1-1.3152(e).

§§ 1-18.114-1-18.116 [Reserved]

§ 1-18.117 Administration of the differing site conditions clause.

(a) Nature of the clause. The Differing Site Conditions clause in § 1-7.6024 provides for an equitable adjustment to the contractor or the Government which reflects the increases or decreases in a contractor's cost of and time for performance that result from a differing site condition (as that term is defined in the clause) encountered by the contractor. However, an equitable adjustment is only available to the contractor if he gives the contracting officer a prompt notice in writing before disturbing the conditions (or secures an extension of the time for giving such notice) and asserts the claim before final payment under the contract.

(b) Notice of differing site conditions. When a contractor believes that a differing site condition has been encountered, the clause requires that a prompt written notice be given to the contracting officer so that the condition of the site can be investigated, the facts can be ascertained, and a determination can be made regarding the presence or absence of a differing site

condition. The prompt notice requirement enables the Government to examine the condition of the site and, if necessary, (1) To modify the contract so that it will reflect the increased or decreased cost of and time for performance or (2) to develop records concerning any increase or decrease in the cost of and time for performance. Cost and time information is essential for an independent Government judgment regarding an equitable adjust ment of the contract. A failure to give a timely notice could seriously prejudice the Government's ability to determine the extent to which the contractor or the Government is entitled to an equitable adjustment. Since the existence of a differing site condition is not always recognizable immediately, the clause provides that the contracting officer may extend the time for the submission of the required notice. The purpose of the authority to extend the time for the notice is to ensure that contractors are not deprived of the remedy provided by the clause because of an inadvertent failure to give the required notice. However, this authority to extend the time for the notice does not entitle a contractor to a time extension beyond the time when he knew, or reasonably should have known, of the existence of a differing site condition. If the contractor gives the required notice at the time he knew, or reasonably should have known, of the existence of the differing site condition, he is entitled to an equitable adjustment which reflects the increased costs and time required for performance that result from the differing site condition. If the contractor fails to submit the required notice to the contracting officer by the time he knew, or reasonably should have known, of the existence of a differing site condition, he is not entitled to an equitable adjustment which reflects the increased costs and time required for performance prior to the time when he gave the notice or the time when the Government had actual notice of the existence of a differing site condition.

(c) Processing of claims. (1) Since the time required by the contractor to ascertain the amount of his claim varies with the circumstances, no spe

cific time for the submission of a claim is specified in the clause or in this section. The clause simply states that no claim will be allowed if asserted after final payment. However, contractors should not unnecessarily postpone the submission of claims for equitable adjustments.

(2) To prevent contractors from unnecessarily postponing the submission of claims, contracting officers shall take the following actions.

(i) When a contractor gives a prompt written notice of a differing site condition but has not submitted a claim for an equitable adjustment, although there has been a reasonable opportunity to ascertain the amount of the adjustment involved, the contracting officer shall send a written request to the contractor (by registered or certified mail) that he submit within a specified period of time either a written claim or a request for an extension of the time for submission of the claim together with the reasons why the additional time is needed.

(ii) In the event that the contractor fails to submit a claim within the time specified in the request, or an approved time extension, the contracting officer shall make a unilateral determination of the amount of the equitable adjustment which the contractor is entitled to and shall notify the contractor of the determination. Such unilateral determinations may not be appealed under the Disputes clause of the contract.

[41 FR 47440, Oct. 29, 1976]

Subpart 1-18.2-Formal Advertising

§ 1-18.200 Scope of subpart.

This subpart sets forth policies and procedures regarding the procurement of construction by formal advertising which is the method of procurement that shall be used whenever feasible and practicable under the circumstances. Small business restricted advertising (see Subpart 1-1.7), while generally subject to the requirements of this subpart, must also meet certain requirements applicable to negotiated contracts (e.g., the Examination of Records clause must be included).

§ 1-18.201 Types of contracts.

Generally, contracts for construction will be of a firm fixed-price type. Such fixed-price contracts may be (a) lump sum contracts for the total work or for defined parts of the work, (b) unit price contracts in which a unit price is paid for a specified quantity of units of work completed such as cubic yards of earth or concrete or square yards of pavement, or (c) a combination of both. Fixed-price contracts with escalation may be used where escalation clauses are customary in contracts for particular items if the omission of such clauses would preclude a significant number of firms from bidding, or would likely result in the inclusion of unwarranted contingencies, which would unreasonably increase the cost to the Government (see § 13.404-3).

§ 1-18.202 Preinvitation notices.

Where preinvitation notices are used, they should be sent to all prospective bidders sufficiently in advance of the issuance of the invitation for bids to stimulate interest on the part of the greatest number of contractors and should be furnished to organizations which maintain plan display rooms as outlined for invitations for bids in § 1-18.203-2. These notices should contain items such as;

(a) Description of the proposed work in sufficient detail to disclose its nature and magnitude in terms of physical characteristics and estimated price range;

(b) Location of the work;

(c) Tentative dates of issuance of invitations, opening of bids, and estimated time of completion;

(d) Where plans will be available for inspection without charge;

(e) A date by which request for an invitation for bids should be submitted; and

(f) A notice that, if no invitation is desired, contractors should inform the issuing office whether future preinvitation notices are desired.

§ 1-18.203 Invitations for bids.

§ 1-18.203-1 Preparation of invitations for bids.

(a) Invitations for bids shall be prepared on forms prescribed in Subpart 1-16.4 and in accordance with this section.

(b) In addition to complying with the requirements of § 1-2.201(a), invitations for bids shall contain the following to the extent applicable:

(1) The applicable wage determination of the Secretary of Labor. If it is necessary to advertise before receipt of a wage determination, a notice that the schedule of minimum wage rates to be paid under the contract will be issued as an amendment to the specifications in advance of the bid opening date;

(2) The clause concerning the amount of work the contractor must perform on the site with his own forces (see § 1-18.104);

(3) The magnitude of the proposed construction as required by § 1-18.109; (4) Time for performance;

(5) Arrangements to be made for inspecting the site and data which may affect performance of the work (see § 1-18.204);

(6) Information concerning the furnishing, during construction, of items such as utilities, office space, and warehouse space;

(7) Information concerning prebid conference;

(8) Any special qualifications or experience requirements that will be considered in determining the responsibility of bidders;

(9) Any special instructions concerning alternates (see paragraph 5(b) of Instructions to Bidders, Standard Form 22);

(10) Instructions to the contractor concerning reporting requirements;

and

(11) Any necessary instruction concerning the conduct of construction activities, covering items such as:

(i) Base lines and grades to use in construction;

(ii) Storage areas;

(iii) Access to construction site; (iv) Construction of temporary buildings;

(v) Protection of materials and work;

40-104 O-79——56

(vi) Damage to existing structures, work or utilities;

(vii) Preservation of existing vegetation;

(viii) Possession of or use by the Government of any completed or partially completed part of the work;

(ix) Cleanup of the site during and after completion of construction;

(x) The handling of shop drawings; and

(xi) Safety requirements and special precautions for hazardous, toxic, and radioactive materials and processes.

(c) All invitations for bids shall allow sufficient bidding time (i.e., the period of time between the date of distribution of an invitation for bids and the date set for opening of bids) to allow bidders an adequate opportunity to prepare and submit their bids, giving due regard for the construction season, the time necessary for bidders to inspect the site, obtain subcontract bids, examine data concerning the work, and prepare estimates from plans and specifications (see § 1-2.2021).

§ 1-18.203-2 Distribution of invitations for bids.

In addition to compliance with § 12.203, invitations for bids (with plans and specifications) for construction work may be furnished without charge to organizations which maintain plan display rooms for the benefit of contractors, subcontractors, and material suppliers, without charge to the public. Requests from organizations in the United States may be honored on an annual or semiannual basis for all or for a stated class of construction projects. The geographical extent of this distribution shall be determined on a case-by-case basis by the contracting officer.

§ 1-18.203-3 Amendment of invitations for bids.

See §§ 1-2.207 and 1-12.404-2.

§ 1-18.204 Inspection of site and of data affecting the work.

Pursuant to Instruction 2 of Standard Form 22. Instructions to Bidders, provision should be made for bidders to inspect the construction site. Also, the opportunity should be provided

for bidders to examine data available to the Government which may provide information affecting performance of the work, such as boring samples, original boring logs, and records and plans of previous construction. Such data should be assembled in one place and made available to all bidders in the same manner. Where feasible, a record should be kept of the identity and affiliation of all bidders' representatives who inspect the site or examine the data.

§ 1-18.205 Prebid conferences.

Where the contracting officer considers that a prebid conference should be held, the invitation for bids shall specify the date, time, and place at which such conference will take place. Ordinarily, this should be about midway during the bidding period. At the conference, the contracting officer or his representative shall explain the nature of the work and problems that can be expected. The design architectengineer should be available during the conference to assist in interpreting the plans and specifications. It should be made clear to all who attend that pursuant to Instruction 1 of Standard Form 22, Instructions to Bidders, only those modifications to the invitation for bids that are covered by amendment will be considered official. A complete record shall be made of the conference.

§ 1-18.206 Opening of bids.

See § 1-2.402. At the bid opening, the relative merits of any bids shall not be discussed by Government representatives with the bidders, their representatives, or with casual observers. No statements shall be issued by Government representatives at a bid opening bearing on the prospective award, the possibility of readvertisement, mistakes in bids, etc. No oral instructions shall be given to bidders at any time during the opening. Protests of bidders and inquiries regarding the award of contract made at the bid opening shall be referred to the contracting officer after completion of the bid opening procedure for such consideration as may be appropriate under existing procedures.