first 49 parts of PODPR will be numerically keyed to the corresponding sections of FPR. Parts 50 through 99 of PODPR will be used for procurement policies and procedures for which there is no counterpart in FPR. The numbering system established by § 1-1.107-2 of this title will be utilized to the maximum practicable extent in PODPR.

§ 39-1.104 Content.

Chapter 39 will contain procurement policies and procedures, prescribed by the Assistant Postmaster General, Bureau of Facilities for uniform application throughout the POD, including the Postal Field Service.

§ 39-1.105 Applicability.

Except where a deviation is specifically authorized in accordance with § 39-1.110 or otherwise authorized by law, Departmental and field employees engaged in procurement activities shall comply with the policies and procedures set forth in FPR and PODPR. Other POD regulations affecting procurement will remain in effect until such time as they are rescinded, lapsed or are incorporated in PODPR.

Regulations. Copies of PODPR, as published in the FEDERAL REGISTER and the Code of Federal Regulations, may be purchased by the public from the Superintendent of Documents, Government Printing Office, Washington, D.C. 20402. § 39-1.107-3 Coordination.

Responsibility for the development of Chapter 39 of PODPR is assigned to the Assistant Postmaster General, Bureau of Facilities. In developing the regulations, this Bureau will solicit the views of the Bureaus and Offices concerned. The Office of General Counsel shall be responsible for determining the legality of all proposed regulations and policy and for making arrangements for the publication of these regulations and any subsequent implementation thereof in the FEDERAL REGISTER.

§ 39-1.108 Citation.

Any section of PODPR may be informally identified in internal instructions or correspondence by "PODPR❞ followed by the section number, as for example PODPR 39-1.108. Only those sections of the regulations which have been published in the FEDERAL REGISTER may be incorporated in contracts by reference. Such sections should be cited as "41 CFR" followed by the section number as "41 CFR 39-1.108". § 39-1.109

Bureau or office implemen

tation. Bureaus and Offices may supplement or implement the FPR and PODPR with internal instructions subject to the prior review and concurrence of the Assistant Postmaster General, Bureau of Facilities, and the Office of General Counsel. The purpose of this review is to ascertain that such instructions are consistent with FPR and PODPR, and that they do not contain material which should be issued as PODPR. A copy of each such instruction shall be furnished to the Procurement Division, Bureau of Facilities. Bureaus or Offices shall prepare for publication in the FEDERAL REGISTEG Such instructions, which implement or supplement FDR or PODPR, as are considered to be of interest to the general public. Such material shall be first submitted to the Assistant Postmaster General, Bureau of Facilities, for review and concurrence. Such material will thereafter be reviewed for legal sufficiency by the Office of General Counsel. When all necessary Bureau or Office concurrences have been

Deviations (as described in § 1-1.0091 of this title) shall be kept to a minimum and shall be controlled as follows:

(a) The Assistant Postmaster General, Bureau of Facilities, is authorized to approve deviations from FPR, to the extent authorized by FPR, and PODPR in individual cases when such action is clearly in the best interest of the Department. A record of the nature of each such deviation and the justification therefor shall be included in the contract file. A copy of each authorized deviation shall be sent to and retained by the Procurement Division, Bureau of Facilities. Any deviation must be approved in advance by the Assistant Postmaster General, Bureau of Facilities, and handled in the following manner.

(1) Request for deviation may be initiated by the contracting officer of any procuring activity of the Department or Postal Field Service. A request shall cite the specific part or section of FPR or PODPR from which it is desired to deviate, shall set forth the nature of the deviation, and shall give the reasons why such action is considered necessary or desirable. Request shall be routed through the head of the procuring activity for concurrence or additional comments. If the initiating office is at a field location, the request shall be routed through the cognizant Washington office of the Bureau or Office concerned. After the indicated concurrence has been obtained, requests shall be submitted to the Assistant Postmaster General, Bureau of Facilities.

(b) If a requested deviation is considered appropriate, approval will be accomplished as follows:

(1) Where the deviation applies to an individual case, approval will be granted by memorandum addressed to the requesting contracting officer with copies to interested Bureaus and Offices and the Procurement Division, Bureau of Facilities. The contract file of the requesting office shall include a copy of the request and approval.

(2) Where the deviation applies to a class of cases, necessary coordination with the General Services Administration will be accomplished by the Bureau of Facilities after consultation with the

Office of Research and Engineering, if necessary. The deviation may be issued as a part of PODPR. The Bureau or Office concerned may be authorized to issue internal instructions which incorporate the deviation consistent with § 1.109 of this title.

(c) When any deviation in a contract form provision is authorized, physical change may not be made in the printed form but shall be made by appropriate provision in the schedule, specifications or continuation sheet, as provided in the Department's procedures.

(d) The requesting office will be notified by memorandum, with copies to other interested Bureaus or Offices and the Procurement Division, Bureau of Facilities, whenever a requested deviation is disapproved.

(e) In emergency situations involving individual cases, deviation clearance may be handled by telephone or telegraph and later confirmed in writing.

(f) Requests for deviation may be made at any time, but contracting officers are urged to review new FPR releases as they are issued so that requests for deviation can be considered prior to the effective date of the FPR.

Subpart 39-1.3-General Policies AUTHORITY: The provisions of this Subpart 39-1.3 issued under R.S. 161, as amended, sec. 205, 63 Stat. 390; 5 U.S.C. 301, 39 U.S.C. 501, 40 U.S.C. 486.

SOURCE: The provisions of this Subpart 39-1.3 appear at 30 F.R. 5793, Apr. 24, 1965, unless otherwise noted.

§ 39-1.305-3 Deviations from Federal Specifications.

The Director, Procurement Division, Bureau of Facilities, or Acting Director, is authorized to approve deviations from Federal Specifications. This delegation of authority may not be redelegated. Deviations shall be kept to a minimum and controlled as follows:

(a) The Director, Procurement Division, Bureau of Facilities, or Acting Director, is authorized to approved deviations from Federal Specifications in individual cases when such action is clearly in the best interests of the Department. A record of the nature of each such deviation and the justification therefor shall be included in the contract file. Any deviation must be approved in advance of solicitation by the Director, Procurement Division, Bureau of Facili

ties, and handled in the following

manner:

(1) Requests for deviation from Federal Specifications may be initiated by the contracting officer of any procuring activity of the Department or Postal Field Service and submitted as far in advance as the exigencies of the situation will permit. Each request shall:

(i) Cite the specific Federal Specification from which a deviation is requested; (ii) Contain a clear statement of the deviation desired;

(iii) State the reasons the deviation is considered necessary or would be in the best interest of the Government;

(iv) Contain a statement as to whether the deviation has been requested previously, and, if so, circumstances of the previous request;

(v) Provide any pertinent background information which will contribute to a full understanding of the desired deviation;

(vi) Furnish comments and recommendations as to whether the Federal Specification should be changed or amended consistent with the deviation requested.

(2) Requests should be routed through the head of the procuring activity for concurrence or additional comments. After the indicated concurrence has been obtained, requests shall be submitted to the Director, Procurement Division, Bureau of Facilities.

(b) If a requested deviation is warranted, approval will be accomplished as follows:

(1) The Chief, Inventory and Distribution Branch, Procurement Division, will request required technical assistance and advice from the Office of Research and Engineering.

(2) The Office of Research and Engineering will:

(i) Recommend if deviation is necessary and justifiable, based on service requirements, research and technical information developed;

(ii) Prepare formal justification to support recommendation for deviation that can be fully substantiated if post audit is required. It shall include positive reasons why Federal Specification does not meet requirements.

(iii) Forward written justification to the Chief, Inventory and Distribution Branch, Procurement Division, Bureau of Facilities, for submission to the Director, Procurement Division.

(c) Notification to the General Services Administration of approved deviations will be made by the final approving official.

(d) The requesting officer will be notified by memorandum, with copies to other interested Bureaus or Offices, whenever a requested deviation is approved or disapproved. The contract file of the requesting office shall include a copy of the request and approval.

(e) Deviations taken and reported in accordance with these regulations may not be continued except as outlined in 41 CFR 1-1.305–3(c). § 39-1.306-1

Mandatory use and application of Federal Standards.

Section 39-1.305-3, PODPR, relating to Federal Specifications, has equal application to the use of Federal Standards. Exceptions to the use of Federal Standards shall be processed and approved in the same manner as exceptions to Federal Specifications.

§ 39-1.315 Use of liquidated damages provisions in procurement contracts. [33 F.R. 4185, Mar. 6, 1968]

§ 39-1.315-1 General.

This 39-1.315 prescribes (a) policy which shall govern Post Office Department contracting officers in the use of liquidated damages provisions in contracts for supplies and services entered into by formal advertising or by negotiation, (b) a schedule, to be used as a guide in computing liquidated damages, and (c) provisions which shall be inserted in contracts for supplies and services when liquidated damages are stipulated. [33 F.R. 4185, Mar. 6, 1968]

§ 39–1.315-2 Policy.

(a) Liquidated damages provisions normally will not be utilized but may be used only (1) when the circumstances are such that the Government may suffer substantial financial loss or disruption to the mail service because of delay, (2) the necessity for delivery or performance as stated in the contract schedule is so imperative that a probable increase in contract cost is justified, and (3) the extent or amount of such damage would be difficult or impossible of ascertainment or proof. The amount of liquidated damages shall always be expressed on a per calendar day basis.

(b) Liquidated damages provisions shall not be used as insurance against selection of a nonresponsible bidder, as

a substitute for efficient contract administration, nor as a penalty for failure to deliver or perform on time. Since damages suffered by delay in delivery or performance may be mitigated by timely exercise of termination for default, the maximum liquidated damages shall not exceed the rate per calendar day multiplied by 180.

(c) The following schedule of liquidated damages shall be used in procurements of fixed mechanization systems alterations and modifications to fixed mechanization systems, and may be used as a guide in other supplies and services contracts, provided the conditions described in paragraph (a) of this section obtain. The daily rates shown represent anticipated costs for contract administration and supervision, and for interest on the Government's investment. In unusual instances, rates other than those shown may be substituted with prior approval of the Director, Procurement Division.

ignated as Article 11(g) and the following is inserted as Article 11(f):

"(f) (1) In the event the Government exercises its right of termination as provided in paragraph (a) above, the Contractor shall be liable to the Government for excess costs as provided in paragraph (b) above and, in addition, for liquidated damages, in the amount set forth elsewhere in this contract, as fixed, agreed, and liquidated damages for each calendar day of delay, until such time as the Government may reasonably obtain delivery or performance of similar supplies or services; except that the amount of liquidated damages shall not exceed the cumulative amount specified in the 'Rate of Liquidated Damages' clause.

"(ii) If the contract is not so terminated, notwithstanding delay as provided in paragraph (a) above, the Contractor shall continue performance and be liable to the Government for such liquidated damages for each calendar day of delay until the supplies are delivered or services performed; except that the amount of liquidated damages shall not exceed the cumulative amount specified in the 'Rate of Liquidated Damages' clause. "(iii) The Contractor shall not be liable for liquidated damages for delays due to causes which would relieve him from liability for excess costs as provided in paragraph (c) of this clause."

"Rate of Liquidated Damages

"In the case of failure on the part of the Contractor to complete delivery or performance within the time fixed in the contract or any extension thereof, the Contractor shall pay to the Government as liquidated damages, pursuant to Article 11, of Standard Form 32, General Provisions (Supply Contract), the sum of for each

calendar day of delay, except that the cumulative amount of such damages shall not exceed

1 The maximum cumulative liquidated damages shall not exceed the daily rate x 180.

Liquidated damages provisions shall not be included in any supplies or services contract without the prior approval of the Director, Procurement Division.

[33 F.R. 4185, Mar. 6, 1968]

§ 39-1.315-3 Contract provisions-contracts for supplies and services. When approved pursuant to § 39-1.3152(d), include the following clauses in the schedule portion (SF36) of the solicitation and contract:

"Liquidated Damages

"Article 11(f) of Standard Form 32, General Provisions (Supply Contract), is redes

39-10 39-10.1

39-10.104-1 39-10.105 39-10.105-1

Other than construction contracts.

AUTHORITY: The provisions of this Part 39-10 issued under 5 U.S.C. 301, 39 U.S.C. 501, 40 U.S.C. 486.

SOURCE: The provisions of this Part 39-10 appear at 33 F.R. 4676, Mar. 19, 1968, unless otherwise noted.

(a) Normally, bid guarantees shall not be required; however, a bid guarantee may be required when all of the following obtain:

(1) The estimated cost of the procurement exceeds $5 million.

(2) The solicitation specifies that poth a performance bond and a payment bond is required.

(b) Bid guarantees shall not be included in solicitations for supplies and services (including solicitations for fixed mechanization, and alterations and modifications to fixed mechanization) without prior approval of the Director, Procurement Division.

§ 39-10.103-2 Amount required.

See Post Office Department regulations in § 39-10.103-3(b).