contractors or subcontractors, resolving all doubts as to whether or not to publicize, in a particular procurement, in favor of publicizing. The requirements of Subpart 1-1.10 of this title and Subpart 29-1.10 shall be interpreted in a manner consistent with this policy.

§ 29-1.1002

Availability of invitations for bids and requests for proposals.

A contracting officer may limit the availability of publicized unclassified invitations for bids and requests for proposals provided that they are made available for perusal at the issuing office and Provided further, That the contracting officer:

(a) States in the synopsis or publicizing notice required by § 1-1.1003 of this title that the number of available "bid sets" is limited, what that limited number is, and that the bid sets will be available on a "first-come-first-served" basis;

(b) States in the synopsis whether only written requests for bid sets will be honored or whether they may be requested by phone and providing, if the latter, the name and phone number of the DOL employee to be contacted; and

(c) Makes available a total of 100 bid sets over and above the number mailed initially or a cumulative total of 150 (counting initial mailing) whichever is less, to concerns and individuals on the bidders mailing list or who are otherwise known to be interested (regardless of whether or not the full bidders mailing list is used).

(d) Obtains a deviation as to the number of "bid sets" required in paragraph (c) of this section, from the head of the procuring activity based on unreasonableness of the standard in paragraph (c) of this section for the particular procurement.

[36 FR 3054, Feb. 17, 1971, as amended at 42 FR 40200, Aug. 9, 1977]

§ 29-1.1002-50 Other publicity concerning procurements.

Where without cost to the Government, the procuring activity can effect the publication of procurement solicitation information, it is encouraged to do so. Such publication may result from its own initiative or in conjunc

tion with one of the DOL information offices. The solicitation may either be current or proposed, but the publication of such information must be consistent with § 1-1. 1003-1(b) of this title. The publication of other information, however, shall not relieve a procuring activity from the requirement for compliance with §§ 1-1.10031, 1-2.202-3(b) and 29-2.203 of this title. Paid advertisements may only be used as provided in § 29-2.203-3.

Subpart 29-1.12-Responsible Prospective Contractors

§ 29-1.1202 General policy.

(a) A contracting officer's duty to contract only with a responsible contractor does not preclude that official's disclosing to the contractor those actions the contractor might take to become "responsible" within the meaning of §§ 1-1.203-1 and 11203-2 of this title. The contracting officer should consider the use of DOL staff in order to qualify a contractor as responsible only when such assistance is within the spirit of the Small Business Administration's program objectives; or is the only way a marginal organization, for which there is no substitute in a given geographic area, can be made eligible, such as in a program for the disadvantaged.

(b) Such DOL staff assistance can take many forms. In cases of borderline financial responsibility, the contracting officer should encourage the contractor's use of available financing techniques. These include, but are not limited to, performance guarantees, advance payments, or Small Business Administration loans. In cases where either the inadequacy of a contractor's accounting system or the contractor's inability to conformt to the contractor's inability to conform to the requirements of the Equal Opportunity Clause is a barrier to the award of a contract, the contracting officer should consider, on a case-by-case basis, the practicality of arranging for assistance to the contractor. Such assistance may take the form of either staff assistance may take the form of either staff assistance from the Department or, in instances of an equal opportunity problem, the assistance of

the applicable compliance agency. In this manner, the services of specialists could be made available to the contractor, when appropriate, to overcome the obstacle to award.

(c) Nothing herein, however, shall be construced, directly or indirectly, as placing on the contracting officer the burden of always finding a contractor "responsible" or, alternatively, initiating and pursuing a course of action which with the help of the Department's staff, will lead to a finding of responsibility. Rather, only where the situation warrants it, is it the policy of DOL to encourage positive involvement of a contracting officer in assisting a contractor to become responsible. Where the circumstances clearly warrant a finding of nonresponsibility and also indicate the impracticality of the DOL's attempting to take steps to cure the contractor's deficiencies, it is the policy of the DOL that the contracting officer make a finding of nonresponsibility.

[42 FR 40200, Aug. 9, 1977]

29-2.407 Award.

29-2.407-3 Discounts.

29-2.407-8 Protests against award.

29-2.407-50 Award when only one bid is received.

AUTHORITY: 63 Stat 389, 80 Stat. 379; 5 U.S.C. 301, 40 U.S.C. 486(c).

SOURCE: 36 FR 3061, Feb. 17, 1971, unless otherwise noted.

NOTE: Nomenclature changes appear at 38 FR 15965, June 19, 1973.

Subpart 29-2.1-Use of Formal Advertising

§ 29-2.101 Meaning of formal advertising. Formal advertising is both by statute and policy the basic and preferred method of procuring supplies and services. Contracts entered into by DOL shall be made by formal advertising in all cases in which the use of such method is feasible and practical under the existing circumstances. Formal advertising has two basic objectives. One is to gain for the Government the benefits of full and free competition. The other is to afford all qualified sources the same opportunity to bid competitively. Since the procedures of formal advertising are, in general, es

tablished by law and regulations, there is seldom, if ever, opportunity for deviation. The contracting officer is responsible for complying with such laws and regulations and for exercising sound judgment with regard to any allowable exceptions consistent with above two basic objectives of formal advertising.

§ 29-2.102 Policy.

Mere lack of time in terms of managerial or operational convenience shall not operate to exclude the use of the formal advertising method for effecting a particular procurement. There must be a compelling urgency for the supplies or services to justify the use of the negotiation exception permitted in section 302(c)(2) of the Federal Property and Administrative Services Act of 1949, as amended. The need for haste in the obligation of annual funds before the end of the fiscal year to avoid the loss of their use does not fall within the statutory exception cited in this § 29-2.102.

§ 29-2.102-50 [Reserved]

§ 29-2.102-51 Specification requirement.

(a) The adequacy of specifications is a critical factor in the use of formal advertising procedures. If the qualitative requirements of the desired item or services are not defined well enough to permit all bidders to bid on the basis of supplying identical items, then the procurement should not have been by formal advertising. Thus, invariably, research and development effort cannot be procured through formal advertising.

(b) Contracting officers are responsible for determining when formal advertising is impractical or otherwise unsuitable. When such a decision is made, it is documented in the form of a determination and finding and processed in accordance with Subpart 293.3.

§ 29-2.105 Solicitation for informational or planning purposes.

Formal solicitation of bids and competitive bid procedures shall not be used on an “exploratory” basis for the purpose of testing the market. This does not mean that bids may not be

The minimum bidding times set forth in § 1-2.202--1 of this title should not be construed also to be maximum or automatic bidding times. The bidding time permitted under each procurement shall reflect the considered judgment of the contracting officer, taking into account all of the facts surrounding the procurement, with recognition that doubts should be resolved in favor of a longer rather than a shorter bidding time. If the bidding time for any procurement is reduced below the minimum periods of 20 or 30 days, as applicable, the reduction shall be fully justified, approved in writing by the Deputy Assistant Secretary for Administration and Management, and documented in the contract file by the contracting officer.

[36 FR 3061, Feb. 17, 1971, as amended at 42 FR 40201, Aug. 9, 1977]

§ 29-2.202-2 Telegraphic bids.

Unless telegraphic bids are specifically allowed by the invitation, they shall be rejected. The contracting officer may provide for them under the circumstances indicated in § 1-2.202-2 of this title. When such bids are authorized, the schedule of the invitation will contain the following provision:

Telegraphic bids may be submitted in response to this Invitation for Bids. Telegraphic bids must be received in this office prior to the time specified for opening of bids. If you elect to bid by telegraph, your bid shall: Specifically refer to this Invitation for Bids; include the items or subitems, quantities, and unit prices for which your bid is submitted and the time and place of delivery; and contain your statement that

you agree to all the terms, conditions, and provisions of the invitation. Failure to furnish, in the telegraphic bid, the representations and information required by the Invitation for Bids may necessitate rejection of the bid. Signed copies of the Invitation for Bids in confirmation of the telegraphic bid must be furnished by the bidder to the contracting officer within 5 calendar days of the latter's request therefor.

[36 FR 3061, Feb. 17, 1971, as amended at 42 FR 40201, Aug. 9, 1977]

§ 29-2.202-52 Discussions with bidders prior to opening date.

(a) One of the essential elements of formal advertising is that all bidders are afforded an equal opportunity to compete. For this reason, during the interval between the mailing of invitations for bids and the making of awards, discussions of the procurement with prospective bidders will be conducted only by, or with the knowledge and approval of, the contracting officer. Neither the contracting officer nor other personnel the contracting officer has authorized to communicate with the bidder shall furnish any information to a potential supplier which alone, or taken together with other information, may afford that supplier an advantage over others. However, general information which would not be prejudicial to other bidders may be furnished upon request, e.g., explanation of a particular clause or provision in the invitation for bids.

(b) If discussions with prospective bidders reveal any ambiguities or inconsistencies in the invitation which, if not corrected, may result in the receipt of nonresponsive bids, such ambiguities or inconsistencies shall be corrected. Such correction shall be achieved, prior to the opening date, by issuing a timely amendment to the invitation for bids or by canceling the invitation, as appropriate.

[36 FR 3061, Feb. 17, 1971, as amended at 42 FR 40201, Aug. 9, 1977]

§ 29-2.202-53 Prebid conference.

(a) General. A prebid conference is a procedure, generally reserved for complex procurements, whereby prospective suppliers (and their subcontractors, if known) are invited to a meeting, presided over by the contracting officer, where there is discussed any unusual aspect of a particular procurement for which an invitation for bids (IFB) or a request for proposals (RFP) has been issued. Whenever the contracting officer deems it in the DOL's best interest (but only, in the case of IFBS, after approval of the Director, Administrative Programs and Services, Office of the Assistant Secretary for Administration and Management) a prebid conference is authorized.

(b) Format. The typical format of a prebid conference is a formal presentation by the Government followed by a question and answer period. When held, a prebid conference shall be scheduled sufficiently in advance of the date set for bid or proposal opening as to permit suppliers to use the information obtained in the preparation of their bids or proposals.

(c) Purpose. There are two primary objectives of prebid conferences: (1) To impart information that removes areas of performance uncertainties which, unless removed, result in higher prices to DOL, i.e., by the supplier's inclusion of an amount for the uncertainty or contingency in the bid or proposed price or estimated cost;

(2) To avoid postaward performance problems about which the supplier could have been made aware at the time of bid or proposal preparation. Changes or substantial clarifications found to be necessary as a result of the prebid conference shall be communicated to suppliers and take the form of formal written amendments to the soliciting documents. Such amendments shall contain, where warranted, an appropriate extension of the closing date for the receipt of bids or proposals.

(d) Limited application. An important premise for procurement by formal advertising is the need for the invitation itself and its specification to be sufficiently clear and complete to insure that all bidders are bidding on the same basis. Therefore, the need for prebid conferences in advertised procurement should be infrequent. The prebid conference shall in no event be used as a substitute for formally amending a defective or ambiguous solicitation or to disseminate additional specification requirements.

[36 FR 3061, Feb. 17, 1971, as amended at 42 FR 40201, Aug. 9, 1977]

§ 29-2.202-54 Bid envelopes.

Mailing labels, tags, or envelopes, bearing "Postage and Fees Paid" indicia shall not be distributed with the invitation for bids or otherwise supplied to prospective bidders. To provide and for ready identification proper handling of bids, Optional Form 17, "Sealed Bid Label," illustrat

ed in § 1-16.902-OF17 of this title and obtained from the General Services Administration, shall be furnished

with each bid set to provide the bidder with a means of marking the envelope or other container enclosing his bid.

§ 29-2.202-55 Alternate bids.

An alternate bid is one that offers a suitable substitute for the requirements set forth in the invitation. The Government can accept an alternate bid only when the invitation specifically allows it. Contracting officer should not use this technique except where a I clear benefit to DOL would result from its use and two-step formal advertising is not applicable. In deciding whether to grant such permission, the contracting officer must weigh the advantage of flexibility which the use of alternative bids offers against the difficulties in bid evaluation that result from this technique.

§ 29-2.203 Methods of soliciting bids.

§ 29-2.203-3 Publicity in newspapers and trade journals.

(a) Paid advertisements. Paid advertisements in newspapers and trade journals and similar advertising media may be used in conjunction with invitations for bids (or RFPs) where DOL would not otherwise obtain the full benefit of available competition. Prices paid for advertising shall not exceed commercial rates charged to private individuals. Only Standard Form SF 1143a, "Public Voucher for Advertising Order," shall be used to place these orders. In placing official advertising no favoritism shall be shown to any publication and there shall be no discrimination either for or against any publication because of its editorial attitude. The sole consideration to govern in the placing of advertising shall be whether the use of such medium is authorized and the adequacy of the medium for achieving the objective of the advertising.

§ 29-2.205 Bidders mailing lists.

§ 29-2.205-5 Release of bidders mailing lists.

Except as provided in §§ 1-1.1003-4 and 1-2.205-5(b) of this title, no infor