loss or damage to the Government furnished property. (k) Guarantee. When performance details are stated in a specification, there may be a need for assurance that an item will be received that will perform satisfactorily, often for several years, especially if there is no practical way in which to perform a test that will make such a determination in advance of awarding the contract or accepting the item. In such cases, it is desirable to call for a guarantee, and the conditions thereof must be stated. If performance details are used, a guarantee should be stipulated, as a requirement of the bid, guaranteeing the item to meet the performance requirements of the specifications for a reasonable period of time. When technical details are stated, any guarantee would be of limited value. In any case the guarantee must be reasonable enough so as not to unnecessarily limit competition. The general rule may be stated as follows: The more general the specifications, the greater the degree of responsibility which the contractor may legally be required to accept, viz., as the technical details are defined by the specifications, the contractor's responsibility for performance must of necessity decrease. (1) Basis for evaluation. The basis that will be used in evaluation of bids should be as clear, precise and exact as possible and must be stated in the Invitation for Bids. It should be stated as a mathematical equation if possible. Where this cannot be done it must be stated with sufficient clarity and exactness to inform each bidder, prior to bid opening, of the factors which will be used in evaluating his bid in relation to other bids, so that he may estimate within reasonable limits the effect of the application of such evaluation. Factors such as, but not limited to, weighted values to be applied at time of award, award in the aggregate, estimated quantities, delivery time when the need is urgent, with liquidated damages in case of delay, and any other circumstance which may cause the award to be made in an unusual manner, must be set forth in the invitation for bids. [29 F.R. 14264, Oct. 16, 1964, as amended at 35 F.R. 3679, Feb. 25, 1970; 40 FR 6974, Feb. 18, 1975] § 4-1.307-3 Commercial, and State and local government specifications and standards. (a) Purchase descriptions which include or reference specifications or stand ards of technical societies, associations or State or local governments may not require the presence of a certificate, label or approval from such organization which could automatically exclude otherwise acceptable products. A mandatory requirement that such a certificate, label or approval be furnished is authorized only when it can be definitely established that inclusion of the requirement would not prevent any manufacturer from bidding on the article specified. This requirement does not preclude acceptance of such a certificate, label or approval as one method of proof of conformance to the published standards or specifications. (b) (1) Voluntary product standards originate with interested industry or State or local government groups. They are cooperatively developed with the U.S. Department of Commerce and published by that agency. They are issued as part of a broad program of aiding American industry through standardization (15 CFR Part 10). The standards may include definitions, classes, sizes, dimensions, capacities, performance criteria, material specifications, marking requirements, installation and test procedures and other similar information. The program is voluntary in nature, therefore no legal obligation exists for the individual firm to conform to a standard in whole or part unless it is incorporated as part of a contract or agreement. (2) Availability of Copies. A list of available standards by name and number is available as publication No. 53 "NBS List of Publications." Write to the Office of Engineering Standards Services, National Bureau of Standards, Washington, D.C. 20234, for copies of this index. Copies of individual standards are available by name and number from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402. If listed as out of print by GPO, single copies may be obtained from the Office of Engineering Standards Services at the address above. [40 FR 6974, Feb. 18, 1975] § 4-1.310 Responsible Prospective Con the case shall be referred to the Director, Office of Operations, for final determination. (See also § 4-4.5093.) [40 FR 6974, Feb. 18, 1975] § 4-1.315 Use of liquidated damages provision in procurement contracts. § 4-1.315-2 Policy. (a) The rate of liquidated damages will depend on the nature of the service or commodity involved and the circumstances of a particular case. For such items as small supplies and equipment, an amount equal to a specified percentage of a unit price per calendar day for the undelivered portion should be used. (Ordinarily, 1 percent might be satisfactory; however, the actual amount will depend on the administrative decision for the particular case.) Contracts for large, expensive equipment may specify a definite amount per calendar day in lieu of the percentage figure. (b) If delivery of the supplies contracted for will reduce the damage to the Government in proportion to deliveries made, the contract stipulation regarding liquidating damages should be on the basis that damages will be assessed on any undelivered supplies for each calendar day of delay after the delivery date fixed in the contract. (c) Sample clauses pertaining to liquidated damages for supply contracts are shown in § 4-1.315-3. For construction contracts, see § 1-18.110. [29 FR. 14264, Oct. 16, 1964, as amended at 34 F.R. 2308, Feb. 18, 1969] 84-1.315-3 Contract provisions. To make the provisions stated in 1-1.315-3 operative, the following are examples of clauses that may be used in the invitation for bids: After award is made to a bidder, if he fails to make delivery within the time specifiled by him, there will be deducted from payment to him, as a liquidated damage, not as a penalty, an amount equal to % of the bid price of the undelivered portion of the order for each calendar day of delay, including Sundays and holidays. Delivery time will be reckoned in terms of calendar days after the date of receipt by the bidder of purchase order and shipping instructions or other formal notice to proceed. The calendar day is the smallest unit of time that will be considered. (a) Each invitation for bids should stipulate a definite delivery time requirement and clearly advise that bids offering later delivery will be considered nonresponsive. (b) Delivery time should be expressed in terms of calendar days and not by a specific date since any delay in award would affect the stipulated delivery date and might make it impossible to award the contract on its advertised terms. However, dates may be specified as indicated by § 1-1.316-4(b). [34 FR. 2308, Feb. 18, 1969] Subpart 4-1.4-Procurement Responsibility and Authority § 4-1.400 Scope of subpart. This subpart states the responsibilities and authorities governing the procurement of equipment, materials, supplies, construction, services, and space for use or consumption by the Department in carrying on its programs. [35 F.R. 3679, Feb. 25, 1970] § 4-1.401 Responsibility of the head of the procuring activity. Under the provisions of 7 CFR 2.79, the Director, Office of Operations is responsible for the general management and coordination of procurement activities of the several agencies of the Department. This broad grant of responsibility shall be construed to include the authority (a) to establish such procurement systems and policies, and (b) to delegate such contracting authorities as in the opinion of the Director, Office of Operations, will facilitate the orderly and economical procurement of equipment, materials, supplies, construction, services, and the leasing of space for use or consumption by the Department in carrying on its programs. [40 FR 6974, Feb. 18, 1975] § 4-1.402 Authority of contracting officers. (a) Contracting officers are primarily responsible for the development, execution, and administration of contracts and the legal, technical, and administrative sufficiency thereof. Specifically, contracting officers shall be responsible for: (1) Developing and applying knowledge of the products and services to be contracted for, including determinations of minimum specification requirements, market availability, purchase timing, and other elements of planning the contract action; (2) Preparing and distributing invitation for bids or request for proposals; (3) Receiving and analyzing bids and offers; (4) Conducting negotiations; (5) Making awards within the limitation of their contracting authority and in accordance with applicable law and regulation; (6) Making any required determinations in connection with award and administration of contracts except where authority therefore is specifically reserved to other officials; (7) Performing or having performed any legal or administrative actions necessary to assure satisfactory performance of the contract modifications, and making decisions on question of fact. The responsibility for deciding questions of fact may not be delegated. (b) The policies and procedures of this Chapter 4 are designed to assist contracting officers in carrying out these responsibilities. In the application thereof, contracting officers must exercise reasonable care, skill, and judgment so as to safeguard the interests of the Government in all contractual relationships. [38 F.R. 11763, Aug. 20, 1968, as amended at 85 F.R. 3680, Feb. 25, 1970; 35 F.R. 14931, Sept. 25, 1970] hereunder will be made by the respective office. [40 FR 6974, Feb. 18, 1975] § 4-1.404 Selection, designation, and termination of designation of contracting officers. 140 FR 6974, Feb. 18, 1975] § 4-1.404-1 Selection. (a) Procurement authority. Procurement contracting authority in any amount shown to be needed under § 4-1.401 shall be obtained by heads of agencies of the Department from the Director, Office of Operations. With the concurrence of the Director, Office of Operations, such authority may be delegated, without redelegation powers to the incumbent of any responsible position at the agency headquarters, regional office or field station subject however, to the criteria specified in paragraph (b) of this section. Procurement contracting authority with redelegation powers shall be granted in a similar manner when: (1) The head of an agency submits adequate justification of a need for this authority, and (2) the criteria specified in paragraph (b) of this section have been accomplished. Procurement contracting authority for automatic data processing equipment and services is subject to the limits established in § 41.453. (b) Selection criteria. The following items are prerequisites for requests under paragraph (a) of this section: (1) The incumbent is classified in CS Grade GS-11 or above and has demonstrated professional competence to exercise the broad authorities of a contracting officer. (2) Each incumbent shall be provided with the Federal Procurement Regulations together with the Agriculture Procurement Regulations and applicable agency supplements. Selected periodicals and other publications designed to keep the Contracting Officer up-to-date with new developments in the field of Federal contracting (see listings in Part 4-53) shall also be provided as funds are available. (3) Education, training, and experience shall provide a degree of knowledge commensurate with the character and complexity of contracts to be executed and administered. Training plans shall provide for the continuing competence of each incumbent. (4) The workload is expected to be sufficient to warrant the expense of providing the necessary facilities, reference material, training and time for study involved in the above. (5) Delegations will not be made to incumbents who have responsibility for inspection of goods, services, or construction to determine compliance with contract specifications where this function can be reasonably assigned to other officials. (6) Adequate personnel to provide technical support to incumbents shall be available to assure necessary assistance in preparing and interpreting technical specifications and in administering the contracts. (7) Adequate internal controls will be established to assure that all delegations fully meet the above criteria. [37 FR 5385, Mar. 15, 1972, as amended at 40 FR 6974, Feb. 18, 1975] § 4-1.404-2 Designation. (a) Requests for concurrence of the Director, Office of Operations, in the delegation of procurement contracting authority should be signed by the agency head and submitted in duplicate. A copy of the approved request will be returned with any necessary instructions or modifications. Changes in existing delegations will be handled in the same manner. Procurement contracting authority will not include authority to contract for construction, alteration, or repair of public buildings or works unless specifically requested. (b) When practicable, delegations of authority should be made to incumbents of positions rather than to individuals. This will eliminate the necessity of making a new delegation each time the incumbent of a position is changed. [33 FR 11764, Aug. 20, 1968, as amended at 40 FR 6974, Feb. 18, 1975] § 4-1.450 Requests for special contracting authority. Except in an emergency, a request for special contracting authority for a specific contract shall be submitted to the applicable office under § 4-1.401 prior to the issuance of the invitation for bids or request for proposals where there is reasonable expectation that the amount of the resulting contract will exceed the authority of the issuing officer. [37 FR 5385, Mar. 15, 1972] § 4-1.451 Procurement by the Office of Operations. The Office of Operations will provide procurement assistance as provided by § 4-5.5703 of this chapter. [40 FR 6974, Feb. 18, 1975] § 4-1.452 Personal interest in contracts. No officer or employee of the Department who is in a position either to influence the award of a contract with the Department or to cause purchase of supplies to be made for the Department, shall be interested in any firm, company, or corporation doing business with the Department unless such interest shall be disclosed in writing and approved by the agency head in advance of the award of any contracts by such officer or employee. [33 F.R. 11764, Aug. 20, 1968] § 4-1.453 Delegation of authority for automatic data processing equipment, services, and related supplies. (a) Those agencies delegated procurement contracting authority by the Office of Operations under § 4-1.404-1 are hereby delegated procurement contracting authority for procurement of automatic data processing equipment, services, and related supplies in the following circumstances: (1) ADP equipment (for definition see § 101-32.402-1 of this title). (i) Such card punching, verifying, and manipulating equipment as is described as electronic accounting machines (EAM) or punch card accounting machines (PCAM) where the total dollar cost does not exceed $50,000 for purchase or annual rental. (ii) Any other items of ADP equipment where the total dollar cost does not exceed $50,000 for purchase or annual rental: Provided, That no existing computer system is augmented under this delegation such that the purchase cost (cost to purchase if leased) of all the components of that system are made to exceed $200,000. (iii) Renewal of equipment up to $50,000 for purchase or annual rental or within the dollar limits and time frame of the original delegation of procurement authority. (iv) None of the above-stated circumstances apply to the intergovernmental transfer (IGT) of owned or leased equipment. All IGT of equipment must be approved by the Office of Automated Data Systems prior to acquisition. (2) ADP equipment maintenance (for definition see § 101-32.402-3). (i) The procurement does not exceed $25,000 annually. (3) ADP software (for definition see § 101-32.402-2). (i) The total procurement for the specific software package does not exceed $7,500 annual lease cost, excluding maintenance, or $10,000 purchase cost. (4) ADP services obtained from other than Federal agencies (for definition of service see 11 AR, Chapter 1, Section 3). (i) The cost of the ADP services involved does not exceed $25,000. (5) ADP supplies (for definition see § 101-32.402-4). (i) The cost of the supplies does not exceed $2,500; or (ii) The procurement will be made under a specific purchase program established by GSA. These programs include electronic data processing (EDP) tapes, tabulating machine cards, and marginally punched continuous forms. Instructions for acquisition of these supplies are set forth in §§ 101-26.508, 101-26.509, and 101-26.703, respectively. (b) All procurements which are not within the authorities, set forth in paragraph (a) of this section must be submitted for technical approval to the Director, Office of Automated Data Services, then to the Director, Office of Operations, for procurement approval. The Office of Operations will either conduct the procurement or delegate the agency authority to conduct the procurement. (c) Any agreement entered into by any agency, service, or staff office of the U.S. Department of Agriculture with other Government departments, agencies, corporations, or other independent entities of organization of the Federal Government, State, or local governments, as well as nonprofit corporations, universities, and other organizations for automatic data processing services, equipment, training facilities or other ADP resources or materials, directly or indirectly (as a part of an agreement whose primary purpose is other than automatic data processing), must have the written approval of the Director, Office of Automated Data Systems, unless the agreement falls within one of the following exceptions: (1) Is with a USDA computer center; 231 (2) Is with another Federal agency and the ADP service; involved will be accomplished at a USDA computer center; (3) Is with NASA for work under the ERTS program; (4) Is for services where the total dollar value of the ADP services involved does not exceed $25,000. [37 FR 22794, Oct. 25, 1972, as amended at 37 FR 26718, Dec. 15, 1972; 40 FR 6975, Feb. 18, 1975; 41 FR 26009, June 24, 1976] Subpart 4-1.6-Debarred, Sus- § 4-1.600 Scope of subpart. This subpart supplements and implements § 1-1.600 of this title. It prescribes policies and procedures relating to debarment, ineligibility, or suspension of bidders for any cause. It is applicable to all procurement and sales contracting by the Department except contracting by the Commodity Credit Corporation. Regulations applicable to that Corporation are stated at 7 CFR Part 1407. However, any notice of debarment or suspension action and any subsequent consideration thereof by the Commodity Credit Corporation under 7 CFR Part 1407 shall apply to all transactions by the Department unless an exception is made by the Department Debarring Officer. (See 41.602-1(d).) [35 F.R. 3680, Feb. 25, 1970] § 4-1.601 General. [40 FR 6975, Feb. 18, 1975] § 4-1.601-1 Definitions. (a) The "Debarring Officer" is the agency or department official authorized to invoke debarment or suspension measures as authorized by this subpart. The Director, Office of Operations, and the Deputy Director, Office of Operations, are the Debarring Officers for the Department (Department Debarring Officers) in connection with all procurement and contracting under the Federal and Agriculture Procurement Regulations. Debarring Officers shall be appointed by the appropriate agency head for the following activities: (1) Timber sales pursuant to 16 U.S.C. 476 (2) School lunch and Surplus Removal pursuant to 42 U.S.C. 1755 and 7 U.S.C. 612c. (b) Debarring Officers are authorized to invoke debarment or suspension meas |