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should be allowed a minimum of three (3) working days in addition to a time allowance for transmitting the notice to, and receipt of the evidence by, the Contracting Officer. The bidder shall be notified immediately in writing if his bid cannot be considered for award because of lateness.

§ 24-2.303-7 Disposition of late bids.

A late bid which is not for consideration shall be held unopened until after award and then returned to the bidder (unless other disposition is requested or agreed to by the bidder). The return of a late bid which cannot be considered for award shall be accompanied by a statement from the Contracting Officer that the bid was not considered because of its late receipt. If the late bid had to be opened for identification purposes or was opened by mistake, this fact shall be included in the statement from the Contracting Officer accompanying the returned bid. In all cases where a late bid is not considered and returned to the bidder, the file shall be documented with all information relating to the determination of late receipt which shall include a copy of the late bid envelope.

Subpart 24-2.4-Opening of Bids and Award of Contract

§ 24-2.401 Receipt and safeguarding of bids.

Envelopes, or other outer covering, containing identified bids, shall be stamped to show the Office of receipt, time and date. The bids shall immediately be turned over to the Contracting Officer who will be responsible for their safekeeping until the official opening. Each procuring activity shall be responsible for establishing procedures for the safeguarding of bids. Unidentified bids and bids that are opened by mistake shall be handled in accordance with 41 CFR 1-2.401(b). The Contracting Officer shall retain in the file a copy of the envelope, wrapper, or other container (bearing the required documentation) of a bid which was opened by mistake or which was opened for purpose of identification.

§ 24-2.402 Opening cf bids.

The bid opening will be conducted by the Contracting Officer or his duly authorized representative designated as the bid opening officer. At the bid opening, the relative merits of any bids shall not be discussed by the person opening the bids, or the Contracting Officer, with the bidders, their representatives, casual observers, or Department personnel. No statement shall be made by the person opening the bid or the Contracting Officer at a bid opening bearing on the award, the possibility of a readvertisement, mistakes in bids, the responsiveness or responsibility of any bidder, etc. Oral instructions shall not be given to bidders at any time during the opening. Protests of bidders and inquiries regarding the award of the contract shall be referred to the Contracting Officer after the completion of the bid opening. Bidders are cautioned that information obtained at bid opening from other than the Contracting Officer may only be relied upon by the bidder at the bidder's own risk. After all bids have been opened, read aloud and recorded, the bid opening officer shall state that opening of bids has been completed.

§ 24-2.402-50 Marking of bids.

Under no circumstances will any individual make any marks or notations on the bid or its accompanying documents. Erasures and any other changes to the bid must be initialed by the individual executing the bid document. If such erasures or changes are not initialed, it shall be handled in accordance with 41 CFR 1-2.405. If through error or for some other reason marks are made on a bid or its accompanying documents by a Government employee, the markings should not be erased or eradicated; instead, the individual so marking the bid shall prepare a signed explanation of the marking for insertion in the file for future reference, showing when, how, and why the notations or markings were made. If the marked bid is accepted, explanation with regard thereto should be made on the statement of award.

§ 24-2.402-51 Timing of acceptance and withdrawal.

Bidders may not withdraw their bids after bid opening unless the notice of withdrawal was mailed prior to the time set for bid opening and handled in accordance with 41 CFR 1-2.305. The Contracting Officer's letter accepting the bid, when written acceptance is required, is effective when mailed. Therefore, a binding contract is effected where acceptance has been mailed by the Contracting Officer before the letter from the bidder advising of withdrawal of bid is received.

§ 24-2.404 Rejection of bids.

§ 24-2.404-50 Rejection of bids in multiple bidding situations.

When more than one bid is received from a person or firm, or affiliates thereof, in response to an invitation for bids, such bids shall be considered for award if responsive and otherwise acceptable. If the Contracting Officer determines that these bids would give a bidder an unfair advantage over other bidders or would otherwise be prejudicial to the best interest of the Government, these bids will be rejected. When a tie situation occurs in which the requirement stipulated in 41 CFR 1-2.407-6 has to be applied, only one of the multiple bids shall be considered.

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Mistakes in bid discovered prior to award (other than obvious clerical errors) shall be submitted to the following authorities for determinations in accordance with 41 CFR 1-2.406-3:

(a) Director, Office of Procurement and Contracts for all Departmental Programs, except as set forth in Item (b) below.

(b) Director of the appropriate Departmental Area or Insuring Office for the Property Disposition AcquiredProperty Program.

Each determination made hereunder will be coordinated with the Office of General Counsel prior to notification to the bidder. The Contracting Officer

shall be notified promptly of the course of action to be taken.

§ 24-2.406-4 Disclosure of mistakes after award.

Pursuant to 41 CFR 1-2.406-4(d), the Director, Office of Procurement and Contracts is delegated authority to make the determinations under 41 CFR 1-2.406-4. Mistakes in bids discovered after award shall be submitted to the Director, Office of Procurement and Contracts accompanied by the data set forth in 41 CFR 1-2.406-4(f). Each determination made hereunder will be coordinated with the Office of General Counsel prior to notification to bidder.

§ 24-2.407 Award.

§ 24-2.407-1 General.

Pursuant to 41 CFR 1-2.407-1, awards shall be made by mailing or otherwise furnishing to the successful bidder a properly executed award document or notice of award. A notice of award may be approved by the Contracting Officer for administrative reasons when the urgency for the contractor's immediate effort is required, e.g., the reproduction and distribution of the contract document may be delayed.

§ 24-2.407-7 Statement and certificate of award.

For each contract made by formal advertising, Standard Form 1036, Statement and Certificate of Award, or other appropriate document, shall be prepared and executed by the Contracting Officer and a copy retained in the contract file.

§ 24-2.407-8 Protests against award.

The following identifies the responsible agents and sets forth procedural requirements for handling protests, except for protests against awards under National Housing Act contracts. For the purpose of definition, as used in this section "working days" means the working days of the Agencies of the Federal Government, excluding Saturdays, Sundays and Federal holidays, as specified in 5 U.S.C. 6103.

(a) Protest before award—(1) Resolution by procuring office. Interested

parties are urged to seek resolution of their complaints initially with the procuring activity. The Contracting Officer shall act on any protest filed with the procuring activity (see 41 CFR 12.407-8(a)) unless it is known that a protest has been filed concurrently with the General Accounting Office (GAO). Where a written protest is filed directly with the procuring activity, full consideration shall be given to the protest with the protestant notified in writing of the final decision on the protest within thirty (30) working days from the date of receipt by the Agency except where GAO views are required, in which case the time for rendering a decision shall be ten (10) working days from receipt of GAO views: Where the Contracting Officer makes a determination to award a contract notwithstanding a protest as authorized by 41 CFR 1-2.407-8(b)(4), the Head of the Procuring Activity shall approve such a determination prior to award. The appropriate official mentioned above shall notify the Office of General Counsel of intent to make award. Pursuant to 41 CFR 12.407-8(b)(3), the Office of General Counsel shall notify the GAO of such proposed action. Parties interested in protesting directly to GAO, shall do so in accordance with the General Accounting Office Regulations 4 CFR Part 20.

(2) Responsibility. The Office of General Counsel has the responsibility for handling matters relating to protests against award of contracts within the Department of Housing and Urban Development and for liaison with the GAO. All communications concerning a protest written or otherwise directed to GAO shall be coordinated with the Office of General Counsel. All written communications from the Department to GAO shall be by the Office of General Counsel. The Contracting Officer has the responsibility for furnishing the Office of General Counsel with all information relating to the protest.

(3) Times for filing. The times for filing are as follows:

(i) Protests based on alleged improprieties in any type of solicitation which are apparent prior to bid opening or the closing date for the receipt of proposals shall be filed prior to the

dates established in paragraph (a)(1) of this section. In other cases, protests shall be filed to be received in the Department of HUD or GAO not later than five (5) working days after the basis for protest is known or should have been known, whichever is earlier. Where such protest has been filed initially with the HUD's procuring activity any subsequent protest to the GAO must be delivered to the GAO within five (5) working days after notification of adverse action by HUD's procuring activity. GAO will consider the protest only if the initial protest was timely filed with the procuring activity.

(ii) Any additional statements by the protester in support of the protest to the GAO shall be mailed or otherwise furnished to the GAO, and two (2) copies sent to the procuring activity, no later than five (5) working days after filing of the initial protest.

(4) Notice of protest and submission of report. (i) Upon being advised by GAO of the receipt of a protest, the Office of General Counsel will inform the procuring activity immediately. The Contracting Officer shall promptly notify in writing the contractor or all bidders or offerors who, in the opinion of the Contracting Officer, appear to have a reasonable prospect of receiving an award if the protest is denied. Upon receipt by the Department of a written request for a formal report from the GAO relating to a protest, the Office of General Counsel shall make the complete formal report, or a written statement setting forth the reasons for any delay and the expected date of submission to GAO within twenty-five (25) working days, unless a different time is stipulated by GAO, after receipt of the GAO request. Except to the extent that withholding of information is permitted or required by law or regulations, copies of the protest and any supplemental information later filed by the protester may be furnished to the parties previously notified of the protest. These parties shall be advised to communicate directly with GAO if they desire to comment on the protest. (ii) The report shall include the documents and statements required by 41 CFR 1-2.407-8(a)(2), identify the GAO file number assigned to the protest

and shall be concurred in by the Contracting Officer. If appropriate, the report shall state the urgency of the procurement and the extent to which a delay in award may result in significant performance difficulties or additional expense to the Government. Where the statement of urgency is not appropriate, the report shall state the length of time an award may be delayed without significant expense or difficulty in performance. The report shall be transmitted by a covering letter addressed to the individual in GAO who signed the request and shall state that copies thereof have been sent to the protestant and any other named parties who have been given notice of the protest. The external distribution shall be shown on the original of the letter to GAO. In addition, letters shall be sent to the protestant and other interested parties enclosing a copy of the completed report and shall advise recipients that any comments shall be filed with the Office of General Counsel, General Accounting Office within ten (10) working days after receipt with copies to the procuring activity and Office of General Counsel, Department of HUD. (iii) If GAO requests additional information, a supplementary report shall be transmitted to GAO within five (5) working days after the Department receives the request and shall follow the procedures set forth in 24 CFR 2.407-8(a)(4).

(b) Protest after award. Protests initially received after contract award are subject to the procedure in this 24 CFR 2.407-8 and 41 CFR 1-2.407-8(c).

(c) Responsibility for data. The Office of General Counsel shall maintain records relating to all protests received. The records shall contain adequate data to show the number and nature of formal protests received (whether filed directly with the Department or with GAO), their disposition and the time for resolution. These records will be reviewed annually in order to update protest procedures.

§ 24-2.407-50 Award when only one bid is received.

When only one bid is received in response to an invitation for bids, such bid may be considered and accepted if

the Contracting Officer makes a written determination that (a) the specifications were clear and not unduly restrictive, (b) adequate competition was solicited and it could have been reasonably assumed that more than one bid would have been submitted, (c) the price is reasonable, and (d) the bid is otherwise in accordance with the invitation for bids. Such a determination shall be placed in the file.

§ 24-2.408 Information to bidders.

On all contracts in excess of $5,000, except for the conditions stipulated in 41 CFR 1-2.408(a) (1) and (2), the unsuccessful bidders shall be given a notification of rejection by one of the methods set forth in 41 CFR 12.408(b).

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(a) General. All departmental procurement shall be accomplished on a competitive basis to the maximum practical extent. Procurement without competition shall be limited to those circumstances where only one firm, organization or individual can provide the required supplies or services within the time required and at a reasonable price. Program offices recommending procurement on a noncompetitive basis shall submit a detailed summary of the factual circumstances supporting sole source procurement to the Contracting Officer. The Contracting Officer shall review the summary in accordance with the criteria outlined in paragraph (c) of this section. If, in the judgment of the Contracting Officer, the noncompetitive procurement is adequately supported, he shall prepare a document entitled "Justification for Noncompetitive Procurement." The document shall comply in all respects with the requirements of paragraph (c) of the section and be signed and inserted in the procurement file by the Contracting Officer.

(b) Exclusions. The provisions of this § 24-3.101-50 do not apply to: (1) Procurements of architect-engineer services; (2) procurement of utility services where the services are available from only one source; (3) 8(a) procurements with the Small Business Administration; or (4) purchases from mandatory Federal Supply Schedule contracts which list only one source.

(c) Justification for noncompetitive procurement. The document entitled "Justification for Noncompetitive Procurement" shall completely discuss the circumstances which render competitive negotiation impractical or not feasible and identify the exclusive capabilities which the proposed contractor possesses and which meet the requirements of the procurement.

(1) Factors which shall be considered in preparing the "Justification” include, but are not limited to, the following;

(i) The unique capability, highly specialized experience or facilities the proposed contractor possesses which is essential to provide the required supplies or services.

(ii) If time is of the essence, the experience, capabilities, or facilities the proposed contractor possesses which would enable him to complete the requirement within the time frame while all others would fail.

(iii) Whether the proposed contractor is the only one which can fulfill a requirement that the desired item be compatible with existing equipment or systems.

(iv) Whether the proposed contractor has a substantial investment of some nature which would have to be duplicated at excessive Government expense by another source entering the field.

(2) The Contracting Officer shall make the final determination as to the adequacy of the proposed sole source based upon consideration of all appropriate factors including any or all of those listed in § 24-3.101-50(c)(1).

§ 24-3.101-51 Unsolicited proposals.

(a) Definition. An unsolicited proposal is a written offer to perform work which is made to the Department by a prospective contractor without prior formal or informal solicita

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