Page images
PDF
EPUB

of concerns (1) who have associated together for the purpose of obtaining and performing jointly, or in conjunction with each other, contracts for supplies or services, or for research and development, for Defense use (2) who have entered into a pool agreement governing their organization, relationship, and procedure, and (3) whose agreement has been approved either in accordance with section 708 of the Defense Production Act of 1950, as amended (Defense Production Pool) or in accordance with sections 9(d) or 11 of the Small Business Act, P.L. 85–536 (Small Business Pools). Pool participants are exempt from the "manufacturer or regular dealer” requirement of the Walsh-Healey Public Contracts Act. (See Subpart F of Part 12 of this subchapter.) Information on types of small business production pools, their purpose, and procedures for estab lishing such pools and for securing their approval by the Small Business Administration (SBA) is contained in the SBA publication “Small Business Production Pools for Defense".

(b) General rule. Except as provided in this section, a pool shall be treated for purposes of Government procurement on exactly the same basis as any other prospective or actual contractor.

(c) Ascertainment of status. The contracting officer is responsible for ascertaining whether a group of firms seeking to do business with the Government is a pool. In ascertaining the status of a group representing that it is a pool, contracting officers may rely on a copy of the SBA or Office of Emergency Planning (OEP) notification of approval of the pool. If the contracting officer has any question as to whether a given pool has been approved, he shall consult the regional office of the SBA. Each department will expeditiously disseminate to contracting officers information received from SBA or OEP concerning the approval of pools.

(d) Contracting with pools. (1) A bid or proposal of a pool is not eligible for award to the pool unless submitted either by the pool in its own name or by an individual member expressly disclosing that it is on behalf of the pool. Except as to contracts to be awarded to incorporated pools, the contracting officer shall prior to award to a pool require to be deposited with him a certified copy of

a power of attorney from each member of the pool who is to participate in the performance of the contract authorizing an agent to execute the bid, proposal, or contract on behalf of such member. A copy of each such power of attorney shall be appended to each executed copy of the contract retained by the Government.

(2) Membership in a pool shall not of itself preclude individual members from submitting bids or proposals as individuals on appropriate procurements. Bids or proposals submitted by an individual member of a pool shall not be considered when the individual member has participated in the bid or proposal submitted by the pool.

(e) Responsibility of pool member. where a member of a production pool has submitted a bid or proposal in its own name and not on behalf of a pool, the pool agreement shall be a factor to be considered in determining its responsibility pursuant to Subpart I of this part.

(f) Small business status. Approval of an organization as a defense production or research and development pool under the Defense Production Act of 1950, as amended, does not confer upon such pool the preferences and privileges accorded to "small business concerns". Such preferences and privileges shall be accorded only to those pools which have been approved under the Small Business Act, Public Law 85–536, as amended. [28 F.R. 12546, Nov. 23, 1963, as amended at 29 F.R. 14816, Oct. 31, 1964] & 1.302–4 Foreign purchases.

Foreign purchases shall be made in accordance with the provisions of Part 6 of this title and upon compliance with any other applicable provisions of the subchapter. [25 F.R. 14082, Dec. 31, 1960) § 1.302–5 Planned emergency producer.

A "Planned Emergency Producer" is a concern with which one or more Government procuring activities have negotiated an emergency production assignment and which holds a valid planned emergency production schedule signed by the responsible Armed Services Procurement Planning Officer (ASPPO). In procurements of items for which there are planned emergency producers, such producers shall be solicited. (25 F.R. 14082, Dec. 31, 1960)

$ 1.302–6 Contracts between the Gov.

ernment and its employees or business organizations substantially owned or controlled by Government

employees. (a) Contracts shall not knowingly be entered into between the Government and employees of the Government or business organizations which are substantially owned or controlled by Government employees, except for the most compelling reasons, such as cases where the needs of the Government cannot reasonably be otherwise supplied.

(b) When a contracting officer has reason to believe that an exception as described in paragraph (a) of this section should be made, approval of the Head of a Procuring Activity shall be obtained prior to entering into any such contract. (27 P.R. 8869, Sept. 6, 1962) $ 1.303 Exchange of purchase informa

tion. (a) Where the same item or class of items is being purchased by more than one Department, or by more than one procuring activity within a Department, the exchange and coordination of pertinent information, particularly cost and pricing data, between these Departments or procuring activities is necessary to promote uniformity of treatment of major issues and the resolution of particularly difficult or controversial issues. Such exchange and coordination of information is particularly beneficial during the period of procurement planning, presolicitation, evaluation, and preaward survey.

(b) Where substantial purchases of major items are involved or where the purchasing activity deems it desirable, it shall request appropriate information (on both the end item and on major subcontracted components) from other purchasing activities responsible for buying similar items. Each activity receiving such requests shall furnish the information requested. The contracting officer, early in a negotiation of a contract, or in connection with the review of a subcontract, shall request the contractor to furnish information as to the contractor's or subcontractor's previous Government contracts and subcontracts for the same or similar end items and major subcontractor components. (27 F.R. 11644, Nov. 27, 1962)

& 1.304 Selection of items involving

data subject to limited rights or other

restrictive factors. In some cases, the procurement of an item would involve data subject to limited rights (see $ 9.201(b) of this chapter) or other factors which would restrict sources of procurement or limit competition, but alternative items can be procured which would meet the military needs involved. In such cases, consideration should be given in selecting the item to be procured, to the relative advantages for national defense purposes of the item which involves such data subject to limited rights or other factors as against the disadvantages of a restricted source of supply and possible increased cost to the Government because of lack of competition. However, where a particular item best meets military needs, the contracting activity should not refrain from procuring the item solely because it would involve such restrictions or limitations. (30 F.R. 6965, May 25, 1965) § 1.305 Time of delivery or perform

ance. (25 F.R. 14083, Dec. 31, 1960) $ 1.305-1 Scope.

Sections 1.305-1.305-4 prescribe policy and procedure regarding requirements as to time of delivery or performance of contracts for supplies or services, excluding construction. [25 F.R. 14083, Dec. 31, 1960) $ 1.305–2 General.

(a) The time of delivery or performance is an essential element for inclusion in a contract and must be clearly set forth in invitations for bids and requests for proposals. Delivery and performance schedules shall be designed to meet the requirements of the particular procurement, with due regard to all relevant factors, and must be realistic. Delivery and performance schedules which are unreasonably tight or difficult of attainment are inimical to full competition, inconsistent with small business policies (see $ 1.702(b) (6)), and may result in higher contract prices. Therefore, prior to issuing an invitation for bids or request for proposals, the contracting officer shall question any deliyery requirement which appears unrealistic, and, if necessary, initiate action to make appropriate adjustments, with due attention to relevant factors such as applicable transportation factors (see

Subpart M of this part), and those listed below:

(1) Urgency of need for the supplies or services;

(2) Production time (quantity, complexity of design, etc.);

(3) Market conditions;
(4) Transportation time;
(5) Industry practices;

(6) Capabilities of small business concerns;

(7) Time for obtaining and evaluating bids or offers, and awarding contracts.

(8) Time for contractors to comply with any conditions precedent to contract performance; and

(9) Time for Government to perform its obligations under the contract (e.g., furnishing Government property to the contractor, approval of preproduction samples, and inspection).

(b) Where timely delivery or performance is unusually important to the Government, liquidated damages provisions may be used as provided in $ 1.310.

(c) Invitations for bids and requests for proposals shall, except where clearly unnecessary, inform bidders or offerors of the basis on which their bids or proposals will be evaluated with respect to time of delivery or performance. 125 F.R. 14083, Dec. 31, 1960, as amended at 29 F.R. 11809, Aug. 19, 1964] § 1.305–3 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., date of award or acceptance by the Government, or 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 paragraph (b) or (c) of this section shall be used in advertised procurements and may be suitability modified and used in appro

priate negotiated procurements (other than small purchases).

(b) Where the delivery schedule is in terms of specific calendar dates, invitations for bids will include one of the following provisions:

(1) The foregoing delivery requirements are based on the assumption that the Government will make award by (purchasing ac. tivity 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 suc. cessful bidder will receive the notice of award by (purchasing 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: provided, that the contractor promptly acknowledges such receipt.

(c) Where the delivery schedule is based on the date of contract (see paragraph (a) (2) of this section), the invitations for bids will 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 the contract date) will be eval. uated 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 in. vitation, the bid will be considered nonre. sponsive and rejected.

(d) Where the delivery schedule is based on the date of the contract (see paragraphs (a) (2) and (c) of this sec

necessary to meet the Government's requirements:

TIME OF DELIVERY Delivery is REQUIRED to be made in accordance with the following schedule:

Item No. Quantity Time [*]

11

Bids offering delivery of each quantity within the applicable delivery period speci. fied 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

(To be completed by bidder)
Item No. Quantity Time (*)

11

tion), 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 day it is dated.

(e) Where the delivery schedule is based on date of receipt by the contractor of notice of award (see paragraph (a) (3) of this section), 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 paragraph (b) (2) of this section), 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 shall be accompanied by a date of receipt acknowledgment card in accordance with Departmental procedures.

(f) When the required delivery schedule in the invitation for bids is based on the date of the contract (see paragraph (a) (2) of this section), a bid offering delivery based on date of receipt by the contractor of the contract or notice of award (see paragraph (a) (3) of this section):

(1) Shall be evaluated by adding the maximum number of days normally required for delivery of the award through the ordinary mails; and

(2) If the delivery date offered by the bid (computed in accordance with subparagraph (1) of this paragraph 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 subparagraph (1) of this paragraph, under the terms of the contract the delivery date will be the number of days, after actual receipt by the contractor of the notice of award, which were specified in the bid. (25 FR. 14083, Dec. 31, 1960) $ 1.3054 Time of delivery clauses.

(a) Examples of time of delivery clauses for invitations for bids are set forth below. They may be modified or other clauses may be used to state particular delivery requirements or any special procedures to be used in the evaluation, rejection or award process as regards time of delivery. These clauses also may be suitably modified for use in negotiated procurements where appropriate.

(b) The following clause may be used where delivery by a particular time is

* Contracting officer shall insert the appropriate one of the following phrases, in both of the indicated spaces:

1. “[On] (on or before) the date(s) specified below.”

2. "Within the number of days stated below after date of contract."

3. “Within the number of days stated below after the date of receipt of a written notice of award."

4. “Within the periods specified below." (NOTE: When this phrase is inserted, the wording "during month(s) of ----------" or “not sooner than -------- and not later than ----------" should be used to specify the periods.

(c) The following clause may be used where delivery by a certain time is desired, but not essential, and delivery by a specified later time is necessary to meet the Government's requirements.

TIME OF DELIVERY Delivery is DESIRED by the Government in accordance with the following schedule:

Item No. Quantity Time [*]

11

If the bidder is unable to meet the above delivery schedule, he may, without prejudice to the evaluation of his bid, set forth his

27

[merged small][merged small][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors]
[ocr errors]

1

1

------*Phrases for insertion as indicated above:

1. “[On] (on or before) the date(s) speci. fied below."

2. "Within the number of days stated below after date of contract."

3. “Within the number of days stated below after the date of receipt of a written notice of award."

4. “Within the periods specified below." (NOTE: When this phrase is inserted, the wording "during the month(s) of ----------" or "not sooner than -------- and not later than ----------" should be used to specify the periods.) [25 F.R. 14083, Dec. 31, 1960) § 1.306 Approval signatures.

Approval signatures on contracts or purchase authorizations shall be minimized to the greatest practical extent and, in the event that multiple approval signatures are required, they shall, where possible, be obtained concurrently. (25 F.R. 14084, Dec. 31, 1960) & 1.307 Priorities, allocations and allot

ments. (25 F.R. 14084, Dec. 31, 1960) § 1.307-1 General.

In the interest of maintaining a minimum priorities and allocations system as a mobilization preparedness measure, it is national policy to require contractors to use rating and allotment authority to support military procurement, to the extent required by the Business and Defense Services Administration.

(a) DOD Priorities and Allocation Manual. Department of Defense imple mentation of all rules and regulation published by the Business and Defens Services Administration, with respect to which the Department of Defense is del egated administrative responsibility, wil be published in the Priorities and Allo cations Manual promulgated by Depart. ment of Defense Instruction 4410.1. Au. thorized deviations to the priorities and allocations rules and regulations wil likewise be published in the Manual

(b) Operating responsibility. In ac cordance with $ 1.403(a), the Depart ments shall comply with the prioritie and allocations program, including the Defense Materials System, as set forti in the Priorities and Allocations Manua and in the rules and regulations published by the Business and Defense Serv. ices Administration. [25 F.R. 14084, Dec. 31, 1960] § 1.307–2 Required use of priorities

allocations, and allotments clause. The contract clause set forth ir $ 7.104-18 of this chapter shall be in. serted in or attached to all rateable contracts, except that no such clause need be attached to purchase orders of less than $500 which are not rated. Rate. able contracts are those contracts for supplies which are required to be supported with rating and allotment authority (see Priorities and Allocations Manual, section 2-1). (26 F.R. 2599, Mar. 28, 1961) § 1.308 Records of contract actions.

(a) Each contract file shall contain documentation of actions taken with respect to the contract, including final disposition, sufficient to constitute a full history of the transaction, to permit ready reconstruction of all of the stages of the transaction to (1) support actions taken by various personnel in the procurement cycle, (2) provide information for reviews conducted by the Department concerned, the Department of Defense, the General Accounting Office, or others, (3) supply data for use in preparing replies to Congressional inquiries, and (4) furnish essential facts in the event of litigation. To the extent that retained copies of documents do not represent all actions taken, suitable memoranda or summary statements of undocumented actions should be prepared promptly and be retained in the contract file in chronological order.

« PreviousContinue »