the Government in essentially the same manner as those referenced.

(b) "Brand name or equal" purchase descriptions should set forth those salient physical, functional, or other characteristics of the referenced products which are essential to the needs of the Government, contain the following information to the extent available, and include such other information as is necessary to describe the item required:

(1) Complete common generic identification of the item required.

(2) Applicable model, make, or catalog number for each brand name product referenced, and identity of the commercial catalog in which it appears.

(3) Name of manufacturer, producer, or distributor of each brand name product referenced (and address if company is not well known).

(c) When necessary to describe adequately the item required, an applicable commercial catalog description, or pertinent extracts therefrom, may be used if such description is identified in the invitation for bids or request for proposals as being that of the particular named manufacturer, producer, or distributor.

[26 F.R. 8978, Sept. 23, 1961]

use of

§ 1-1.307-5 Limitations on "brand name or equal" purchase descriptions.

"Brand name or equal" purchase descriptions may be used only under the circumstances in paragraph (a) or (b) of this section 1-1.307-5:

(a) When a suitable formal Government specification or standard or industry standardization document approved for agency use is not available, and a purchase description of the type referred to in § 1-1.307-3 is inadequate or unavailable, and a purchase description meeting the general requirements of § 1-1.307-2 cannot be prepared because

(1) Construction or composition of the product to be procured is too technically involved;

(2) Public exigency or military necessity precludes timely development; or

(3) It is impracticable or uneconomical to prepare a purchase description.

(b) When purchasing items for authorized resale, except military clothing.

(c) The product to be referenced must, in any event, be regularly offered for sale to the public.

(d) When a "brand name or equal" description is used, a notation shall be

made in the case file as to the reasons therefor.

[26 F.R. 8978, Sept. 23, 1961]

§ 1-1.307-6 Invitation for bids, “brand name or equal" descriptions.

(a) Except as provided in paragraph (b) of this section, when a "brand name or equal" purchase description is included in an invitation for bids:

(1) The following shall be inserted after each item so described in the invitation, for completion by the bidderBidding on:

Manufacturer's Name

Brand

No.

(2) In addition, the following clause shall be included in the invitation:

BRAND NAME OR EQUAL

(As used in this clause, the term "brand name" includes identification of products by make and model.)

(a) If items called for by this Invitation for Bids have been identified in the schedule by a "brand name or equal" description, such identification is intended to be descriptive, but not restrictive, and is to indicate the quality and characteristics of products that will be satisfactory. Bids offering "equal" products will be considered for award if such products are clearly identified in the bids and are determined by the Government to be equal in all material respects to the brand name products referenced in the Invitation for Bids.

(b) Unless the bidder clearly indicates in his bid that he is offering an "equal" product, his bid shall be considered as offering a brand name product referenced in the Invitation for Bids.

(c) (1) If the bidder proposes to furnish an "equal" product, the brand name, if any, of the product to be furnished shall be inserted in the space provided in the Invitation for Bids, or such product shall be otherwise clearly identified in the bid. The evaluation of bids and the determination as to equality of the product offered shall be the responsibility of the Government and will be based on information furnished by the bidder or identified in his bid as well as other information reasonably available to the purchasing activity. CAUTION ΤΟ BIDDERS. The purchasing activity is not responsible for locating or securing any information which is not identified in the bid and reasonably available to the purchasing activity. Accordingly, to insure that sufficient information is available, the bidder must furnish as a part of his bid all descriptive material (such as cuts, illustrations, drawings, or other information) necessary for the purchasing activity to (i) determine whether the product offered meets the requirements of the Invitation for Bids and (ii) establish

exactly what the bidder proposes to furnish and what the Government would be binding itself to purchase by making an award. The information furnished may include specific references to information previously furnished or to information otherwise available to the purchasing activity.

(2) If the bidder proposes to modify a product so as to make it conform to the requirements of the Invitation for Bids, he shall (1) include in his bid a clear description of such proposed modifications and (ii) clearly mark any descriptive material to show the proposed modifications.

(3) Modifications proposed after bid opening to make a product conform to a brand name product referenced in the Invitation for Bids will not be considered.

(b) Where a component part of an end item is described in the invitation for bids by a “brand name or equal" purchase description and the contracting officer determines that application of the clause in paragraph (a) (2) of this section 1-1.307-6 to such component part would be impracticable, the requirements of paragraph (a) (1) and (2) of this section 1-1.307-6 shall not apply with respect to such component part. In such cases, if the clause is included in the invitation for bids for other reasons, there also shall be included in the invitation a statement identifying either the component parts (described by "brand name or equal" descriptions) to which the clause applies or those to which it does not apply. This paragraph (b) also applies to accessories related to an end item where a "brand name or equal" purchase description of the accessories is a part of the description of an end item.

(c) When an invitation for bids contains "brand name or equal" purchase descriptions, bidders who offer brand name products referenced in such descriptions shall not be required to furnish bid samples of the referenced brand name products; however, invitations for bids may require the submission of bid samples in the case of bidders offering "or equal" products.

[26 F.R. 8979, Sept. 23, 1961]

§ 1-1.307-7 Bid evaluation and award, “brand name or equal” descriptions. (a) Bids offering products which differ from brand name products referenced in a "brand name or equal" purchase description shall be considered for award where the contracting officer determines in accordance with the terms of the clause in § 1-1.307-6(a) (2) that the offered products are equal in all material

respects to the products referenced. Bids shall not be rejected because of minor differences in design, construction, or features which do not affect the suitability of the products for their intended use. (b) Award documents shall identify, or incorporate by reference an identification of, the specific products which the contractor is to furnish. Such identification shall include any brand name and/or make or model number, descriptive material, and any modifications of brand name products specified in the bid. Included in this requirement are those instances where (1) the description of the end item contains "brand name or equal" purchase descriptions of component parts or of accessories related to the end item and (2) the clause in § 1-1.307-6(a) (2) was applicable to such accessories component parts or (see

§ 1-1.307-6(b)).

[26 F.R. 8979, Sept. 23, 1961]

§ 1-1.307-8 Procedure for negotiated procurements and small purchases.

(a) The policies and procedures prescribed in § 1-1.307-6 and 1-1.307-7 for formally advertised procurements shall be generally applicable to negotiated procurements.

(b) The clause in § 1-1.307-6(a) (2) may be adapted for use in negotiated procurements. If use of the clause is not practicable (as may be the case in exigency purchases), suppliers shall be suitably informed that proposals offering products different from the products referenced by brand name will be considered if the contracting officer determines that such offered products are equal in all significant and material respects to the products referenced.

(c) In small purchases within openmarket limitations, such policies and procedures shall be applicable to the extent practicable.

[26 F.R. 8979, Sept. 23, 1961]

Section 1-1.310 prescribes policy and procedures governing executive agencies in determining, before award, whether prospective contractors for furnishing the Government supplies or nonpersonal services (including construction) qualify as responsible.

§ 1-1.310-2 General.

The award of contracts to bidders who are not responsible is a disservice to the Government, which may, by such awards, be denied acceptable supplies or services within the time required. It frequently is inequitable to the contractors themselves, who may suffer hardship, sometimes even business failure, as a result of defaults, deductions, and rejections because of inability to meet contract requirements. Moreover, such awards are unfair to other competing bidders, capable of performance, and discourage them from bidding on future procurements. It is essential, therefore, that precautions be taken to award contracts only to reliable and capable bidders who can reasonably be expected to comply with contract requirements.

§ 1-1.310-3 Applicability.

This section 1-1.310 is applicable to all procurements made by executive agencies in the United States, its possessions, Hawaii, and Puerto Rico and, to the extent practicable, in other places. It is not applicable to orders placed under existing Government contracts, or to procurements from: (a) other governments (foreign, State, or local) .or their instrumentalities; (b) other United States Government departments and agencies or their instrumentalities (such as, Federal Prison Industries, Inc.) ; and (c) National Industries for the Blind.

the following standards as they relate to the particular procurement under consideration:

(1) Is a

manufacturer, regular dealer, service contractor, or construction contractor (as defined in Subpart 1-1.2), or such other person or firm as may be found by the agency concerned to be qualified and responsible as a source of supply;

(2) Has adequate financial resources for performance, or has the ability to obtain such resources as required during performance;

(3) Has the necessary experience, organization, technical qualifications, skills, and facilities, or has the ability to obtain them (including probable subcontractor arrangements);

(4) Is able to comply with the proposed or required time of delivery or performance schedule;

(5) Has a satisfactory record of integrity, judgment, and performance (contractors which are seriously delinquent in current contract performance, considering the number of contracts and the extent of delinquencies of each, shall, in the absence of evidence to the contrary or compelling circumstances, be presumed to be unable to fulfill this requirement);

(6) Has not indicated an unwillingness or inability to conform to the requirements of the standard nondiscrimination clause; and

(7) Is otherwise qualified and eligible to receive an award under applicable laws and regulations.

(b) Acceptable evidence of "ability to obtain" financial resources, experience, organization, technical qualifications, skills, and facilities (see (a) (2) and (3), above), generally shall be a firm commitment or arrangement for the rental, purchase, or other acquisition thereof. § 1-1.310-6 Determination of responsi

bility.

(a) No contract shall be awarded to any person or firm unless the contracting officer has first determined that such person or firm is responsible within the meaning of sections 1-1.310-4 and 11.310-5. The signing of a contract shall be deemed to be a certification by the contracting officer that he has determined that the prospective contractor is responsible with respect to that contract.

(b) In any case where the procurement exceeds $10,000, and the contracting officer (or contracting agency) considers such a statement advisable for justification or other reasons, the contracting officer shall prepare, sign, and place in the contract file a statement of the facts on which the determination of responsibility was based. Relevant factors for consideration in determining whether such a statement is advisable would include the value, importance, or technical aspects of the procurement, or the fact that a pre-award on-site evaluation was considered necessary and that it was made.

Any supporting documents

or reports, including reports of preaward on-site evaluation and any information to support determinations of responsibility of subcontractors, should be filed with the statement.

§ 1-1.310-7 Information regarding responsibility.

Before making a determination of responsibility, the contracting officer shall have sufficient current information to satisfy himself that the prospective contractor meets the standards in section 1-1.310-5. Information from the following sources should be utilized before considering making a pre-award on-site evaluation:

(a) Information from the prospective contractor, including representations and other data contained in bids and proposals, or other written statements or commitments, such as financial assistance and subcontracting arrangements.

(b) Other existing information within the agency, including financial data, the list of debarred and ineligible bidders (see Subpart 1-1.6), and records concerning contractor performance.

(c) Publications, including credit ratings, and trade and financial journals.

(d) Other sources, including banks, other financial companies, and Government departments and agencies.

§ 1-1.310-8 Capacity and credit of small business concerns.

In the case of a prospective contractor which is a small business concern, if the contracting officer is not satisfied that the prospective contractor meets the standards in section 1-1.310-5 only because of the lack of adequate capacity or credit, he shall, before making a responsibility determination, comply with the

requirements concerning Certificates of Competency issued by the Small Business Administration (see Subpart 1-1.7).

§ 1-1.310-9 Pre-award on-site evaluation.

(a) A pre-award on-site evaluation is an inspection of facilities and equipment with which a prospective contractor proposes to perform a contract, including interviews with contractor personnel. It is made at the direction of the contracting officer, generally by Government specialists, to provide needed responsibility information.

(b) Pre-award

on-site evaluations need normally not be performed when the information sources stated in section 1-1.310-7 yield sufficient data to enable a contracting officer to make a determination regarding the responsibility of a prospective contractor. Generally, preaward on-site evaluations are not necessary in connection with contracts of less than $10,000.

(c) Pre-award on-site evaluations shall cover only those standards or portions thereof concerning which information available (from the sources listed in section 1-310-7) appears to be not current, sufficient, or reliable.

§ 1-1.310-10 Performance records.

Such records of contractor past performance shall be maintained as are considered necessary for the use of contracting officers in placing new procurements. Records in more complete detail should be maintained on contractors which have indicated by past actions that the character of their performance on contracts is questionable, and on new contractors whose reliability has not been established.

§ 1-1.310-11 Subcontractor responsibility.

Generally, the evaluation of the qualifications of subcontractors is a function of the prime contractor. However, to the extent that a prospective contractor cannot meet the standard in section 1-1.310-5 (a) (3) except by means of proposed subcontracting, the prospective prime contractor shall not be considered to be responsible unless recent performance history indicates an acceptable purchasing and subcontracting system or prospective major subcontractors are determined by the contracting officer to satisfy that standard.

the contract that the Government may reasonably expect to suffer damage if the delivery or performance is delayed, and (2) the extent or amount of such damage would be difficult or impossible of ascertainment or proof.

(b) In making decisions as to whether liquidated damages provisions are to be used, consideration should be given to their probable effect on such matters as pricing, competition, and the costs and difficulties of contract administration, as well as the availability of provision elsewhere in the contract for recovery of excess costs in termination cases.

(c) The rate of liquidated damages stipulated must be reasonable in relation to anticipated damages, considered on a case-by-case basis, since liquidated damages fixed without any reasonable reference to probable damages may be held to be not compensation for anticipated damages caused by delay, but a penalty, and therefore unenforceable.

(d) Where a licuidated damages provision is included in a contract and a basis for termination for default exists, appropriate action should be taken expeditiously by the Government to obtain performance by the contractor or to exercise its right to terminate as provided in the contract. If delivery or performance is desired after termination for default, efforts must be made to obtain either delivery or performance elsewhere within a reasonable time. Efficient administration of contracts containing liquidated damages provisions is imperative to prevent undue loss to defaulting contractors and to protect the interests of the Government.

(e) Whenever any contract includes a provision for liquidated damages for delay, the Comptroller General, on the recommendation of the head of the agency concerned, is authorized and empowered, by law, to rerit the whole or any part of such damages as in his discretion may be just and equitable.

§ 1-1.315-3 Contract provisions. service (a) Supply or contracts. When a liquidated damages provision is to be used in a supply or service contract which includes Standard Form 32, General Provisions (Supply Contract), the following provision shall be inserted in the invitation for bids and an appro

priate rate(s) of liquidated damages