SEC.

PART 25-SATELLITE COMMUNICATIONS

SUBPART B-COMMUNICATIONS SATELLITE PROCUREMENT REGULATIONS

25.151 Scope, purpose and application of this subpart.

§ 25.151 Scope, purpose and application of this subpart.

The provisions of this subpart govern the administration of section 201 (c) (1) of the Communications Satellite Act of 1962, and are designed to insure effective competition in the procurement by the corporation and communications common carriers of apparatus, equipment, and services required for the establishment and operation of the communications satellite system and satellite terminal stations, and to insure that small business concerns are given an equitable opportunity to share in such procurements. This subpart establishes uniform

policies and procedures applicable to all procurements except where: (a) The value of the procurement is less than $2,500.

(b) The procurement is for electric power or energy, gas, water, or other utility service.

(c) The procurement is from or through a government instrumentally. (d) The procurement is for personal services.

$25.156 Definitions. (See also § 25.103.)

Except as otherwise provided, the following terms shall have the following meanings when used in this subpart.

(a) Bidders' mailing list. The term "bidders' mailing list" means one of a number of lists classified by types of property or services containing the names of those suppliers, including small business concerns, who have made request for inclusion and who appear to be qualified for inclusion therein, or who may appear from other information to be qualified.

(b) Carrier. The term "carrier" has the same meaning as that of communications common carrier. (See § 25.103 ( a ).)

(c) Contracts. The terms "contracts" means all types of agreements and purchase orders for procurement by a party making procurement and includes all substantial contract modifications.

(d) Government instrumentality. The term "government instrumentality" means any of the following:

(1) An agency or instrumentality of the Federal Government; a possession of the United States; or the Commonwealth of Puerto Rico;

(2) A State or local government or an agency or instrumentality thereof. (e) Party making procurement. The term "party making procurement" means any person or firm engaged in the procurement of property or services required primarily for the establishment and operation of the communications satellite system or satellite terminal stations, including the corporation, carriers, prime contractors, and subcontractors; provided, however, for the purposes of §§ 25.16225.168, inclusive, the term party making procurement means the corporation, carriers, and prime contractors.

(f) Procurement. The term "procurement" means all procedures for the purchasing, renting, leasing, or the obtaining by any other means of all properties or services required primarily for the establishment and operation of the communications satellite system or satellite terminal stations.

(g) Property. The term "property" means all tangible property, including apparatus, equipment, and supplies.

(h) Prime contractor. The term "prime contractor" means any person or firm to whom any contract is awarded directly by the corporation or a carrier. (i) Services. The term "services" means research, development, construction, maintenance and repair activities.

(j) Small business concern. The term "small business concern" shall have the same definition as promulgated by the Small Business Administration for procurement purposes as set forth in 13 CFR Part 121. If the size status of any small business concern is questioned, the matter shall be referred to the Small Business Administration for a determination.

(k) Subcontract. The term "subcontract" means any contract to perform any work or to make or furnish any property or service required for the performance of any one or more prime contracts or subcontracts.

(1) Subcontractor. The term "subcontractor" means any person or firm to whom any contract is awarded by a prime contractor or subcontractor under a prime contract.

Every contract or subcontract shall contain a provision that each party making procurement shall comply with the provisions of this subpart.

§ 25.162 Persons required to give prior notification.

No party making procurement shall award a contract or subcontract for property or services of a value of $2,500 or more unless notification shall have been given to the Commission in accordance with §§ 25.163-25.166; however, the Commission may waive or modify the requirements of §§ 25.163-25.166 or any other provisions of this subpart in accordance with § 1.15 of this chapter. § 25.163 Contents of notification.

Each notification submitted under this subpart shall contain or incorporate the following information:

(a) Name and address of the party making procurement;

(b) Names and addresses of all companies who have responded to the invitation for bids or request for proposals of the party making procurement;

(c) The method of procurement used and a statement that such method has been carried out in compliance with the provisions of this subpart applicable thereto;

(d) Copy of the contract or subcontract to be awarded or a description of its material provisions;

(e) The name of the person or firm to whom the contract or subcontract will be awarded. In the event the award is not made to the lowest bidder, a statement of the reasons therefor;

(f) If the party making procurement has a financial interest in the person or firm to whom the award will be made, the nature and extent of such interest; (g) A statement containing a full and complete disclosure of the real party or parties in interest, if other than the parties named in the contract or subcontract.

$25.164 Who may sign the notification.

(a) Each notification or amendment thereto shall be personally signed by the party making procurement, if said party is an individual; by one of the partners, if said party is a partnership; by an officer or duly authorized employee, if said party is a corporation; or by a member who is an officer, if said party is an unincorporated association.

(b) Only the original of any notification and any amendment thereto need be signed; copies may be conformed.

(c) Notification and amendments thereto need not be signed under oath; however, wilful false statements made therein are punishable by fine and imprisonment (18 U.S.C. § 1001), and by other appropriate administrative sanctions. § 25.165 Form of notification, number of copies, etc.

(a) The original notification and five copies thereof shall be filed with the Commission. Each copy shall bear the dates and signatures that appear on the original and shall be complete in itself.

(b) All notifications shall be on paper 8 by 101⁄2 inches with left hand margin not less than 11⁄2 inches wide. The impression shall be on one side of the paper only and shall be double spaced. Notifications and accompanying papers, except charts, shall be typewritten or prepared by mechanical processing methods. All copies must be clearly legible.

§ 25.166 Action upon notification.

Except as provided in § 25.168, the party making procurement may award the proposed contract or subcontract at any time subsequent to 10 days after the date of acceptance for filing of such notification or last amendment thereto unless within such period either the party making procurement, by written or telegraphic notice to the Commission extends such period or the Commission notifies such party during such 10-day period or any extension thereof that the Commission cannot without further investigation, determine whether its rules and regulations have been complied with. In the latter event, the Commission shall issue a public notice and proceed in accordance with subparagraphs (a) and (b) of this section:

(a) Within 10 days following issuance of such notice by the Commission, any interested person may file written comments with respect to the proposed contract or subcontract. Such comments shall also be served on the party making procurement who shall be afforded 5 days in which to file written reply comments.

(b) The party making procurement may award the proposed contract or subcontract at any time subsequent to 30 days following issuance of such notice by the Commission, unless within the 30 day period such party is further notified in writing by the Commission that it is unable to find that the proposed contract or subcontract is in accordance with the provisions of this subpart and the reasons therefor. Such further notice will specify a reasonable time within which such party may respond thereto. Upon receipt and consideration of such response, if any, and all other relevant information, the Commission shall enter an order either permitting the award of the contract or subcontract or institute such further proceedings as appear appropriate.

§ 25.167 Amendments.

The Commission may at any time order or require the party making procurement to amend his notification so as to make it more definite and certain or to submit such additional documents or statements as in the judgment of the Commission may be necessary.

25.168 Defective notifications.

Notifications not in accordance with the applicable provisions of this subpart may be deemed defective and returned by the Commission without acceptance of such notification for filing and consideration.

$25.169 Publication requirements.

Every invitation for bids or request for proposals issued by a party making procurement with respect to a procurement which may have a value of $2,500 or more shall be publicized through the bidders' mailing list and the party making procurement is encouraged to use the Commerce Business Daily, published by the Department of Commerce (see 41 CPR Subpart 1-1.10). A copy of every such invitation or request, together with a list of all concerns which have been

notified, and a statement of the method of procurement to be used and of the reasons therefor, shall be filed with the Commission by the party making procurement within five days from the date of issuance of such invitation or request.

(a) Bidders' mailing lists shall be established and maintained by the party making procurement, who shall file such lists with the Commission and consult with the Small Business Administration to obtain names and addresses of small business concerns who have been evaluated by that organization as having the technical and other capabilities required to provide the type of property or services for which the list is intended.

(b) Less than the complete bidders' mailing list may be utilized if a reasonable number of suppliers are solicited. When less than the complete bidders' mailing list is utilized, all small business concerns on such list shall be solicited, except that only a reasonable number of such concerns need be solicited when the bidders' mailing list is composed predominantly of small business concerns.

(c) When a supplier of property or services listed by the party making procurement consistently fails to respond to invitations for bids or requests for pro posals, the supplier may be deleted from the bidders' mailing list. Such supplier shall be reinstated upon application to said party.

(d) A reasonable number of copies of invitations for bids and requests for proposals publicized through the bidders' mailing list, including specifications and other pertinent information, shall be maintained by the party making procurement. Copies of such invitations or requests shall be available for inspection by all interested parties, including Government agencies, manufacturers, contractors, publishers, trade associations, procurement information services, and other disseminators of information.

$25.170 [Reserved]

§ 25.171 Methods of procurement.

All procurements by a party making procurement shall be made by formal advertising except when the contract or subcontract to be awarded is less than $2,500 or where two-step procurement or negotiations are otherwise authorized under this subpart.

§ 25.172 Formal advertising.

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

(a) Contents of the invitation for bids. The invitation for bids shall contain a detailed description of the requirements of the party making procurement. The invitation shall specify the date by which the bid must be submitted, the time and place established for the opening of bids, delivery requirements, all applicable contractual provisions (including any requirements for bonds, liquidated damage provisions, etc.) and shall contain a complete set of all applicable specifications, technical data and drawings or the place where such specifications, technical data and drawings may be obtained by bidders and any other information deemed appropriate.

(b) Publicizing the invitation for bids. The invitation for bids shall be solicited, publicized, and the Commission shall be notified in accordance with the procedures set forth in § 25.169.

(c) Submission of bids by prospective contractors. Bids must be submitted in the form and manner prescribed in the invitation for bids and comply with all the requirements contained therein. Bids may be modified or withdrawn at any time prior to opening. After opening, modifications or withdrawal may be permitted by the party making procurement provided it is not to the detriment of other bidders or in no way detracts from the competitive nature of the procurement.

(d) Evaluation and award. To the extent possible, all bids for a given procurement shall be opened at the time and place set forth in the invitation for bids by the party making procurement, who shall record all bids. Unless all bids are rejected, an award shall be made to that bidder whose bid, conforming to the invitation, is most advantageous to the party making procurement, price and other factors considered. (See also § 25.176(b).) When an award has been made, an unsuccessful bidder shall upon request be notified by the party making procurement of the reasons its bid was not accepted.

§ 25.173 Two-step procurement

Two-step procurement is a means of procurement conducted in two phases. Phase one consists of the request for, and the submission, evaluation, and if necessary, discussion of, technical proposals without pricing. Phase two consists of a formally advertised procurement limited to those contractors submitting technically acceptable proposals in phase one.

(a) Limitations on use. This method of procurement shall only be used when available specifications or purchase descriptions do not permit formal advertising without engineering evaluations and discussion wth respect to the technical aspects thereof so as to insure mutual understanding between contractors and the party making procurement.

(b) Request for technical proposals-phase one. Technical proposals shall be requested, the request publicized, and the Commission notified in accordance with the procedures set forth in § 25.169. The request for technical proposals shall contain, or shall incorporate, the following information:

(1) The best available description of the property or services required. (2) A statement that the procurement will be conducted in two phases and notification to contractors of the scope of each phase.

(3) The minimum acceptable technical information required to be submitted by the bidders.

(4) The criteria for evaluating technical proposals; and a statement that modifications of the criteria may be permitted provided it is not to the detriment of other bidders or in any way detracts from the competitive nature of the procurement.

(5) A statement that technical proposals shall not be accompanied by prices or pricing information.

(6) Notification that prospective bidders may discuss the request and their technical proposals with the party making procurement.

(7) A statement that only those bidders submitting acceptable technical proposals will be permitted to participate in the second phase of the procurement. (8) The date by which the technical proposal must be submitted.

(9) Any other information deemed appropriate.

(c) Evaluation of technical proposals-phase one. The following procedures shall govern the evaluation of technical proposals:

(1) Upon receipt and review of technical proposals submitted in phase one, all reference to pricing or cost data shall be removed and may not be given consideration.

(2) Evaluation of technical proposals will be made upon the criteria set forth in the request for technical proposals, and any permissible modifications.

(3) Technical proposals shall be categorized, by the party making procurement, as follows: acceptable, acceptable requiring further discussion, or unacceptable. Upon evaluation of technical proposals received in phase one, the party making procurement shall arrange for necessary discussions with those bidders submitting technical proposals which might become acceptable after further discussion if additional proposals are necessary to insure effective competition or equitable opportunity for small business.

(d) Phase two. Upon completion of the procedures required in phase one, invitations for bids shall be extended to those parties whose technical proposals have been evaluated and determined to be acceptable and a list of such parties shall be filed with the Commission within 5 days from the date such invitations for bids are extended. The invitation shall specify the date by which the bid must be submitted, the time and place established for the opening of bids, delivery requirements, all applicable contractual provisions (including any requirements for bonds, liquidated damage provisions, etc.), and any other information deemed appropriate. Such parties shall be informed in the invitation that they will be limited to the property or service set forth in the acceptable technical proposals and that submitting pricing for other property or service shall preclude consideration of the bid submitted in phase two.

(e) Evaluation and award. To the extent possible, all bids for a given procurement shall be opened at the time and place set forth in the invitation for bids by the party making procurement who shall record all bids. Unless all bids are rejected, an award shall be made to that bidder whose bid, conforming to the invitation, is most advantageous to the party making procurement, price and other factors considered. (See also § 25.176 (b).) When an award has been made, an unsuccessful bidder shall upon request be notified by the party making procurement of the reasons its bid was not accepted.