the specifications used in the invitation were not restrictive, (2) adequate competition was solicited, (3) the price is reasonable, and (4) the bid is otherwise in accordance with the invitation for bids. The responsible contracting officer shall ensure that the contract file contains complete documentation that an award to the only offeror is in the best interest of the Government, particularly with regard to price reasonableness. The basis for price reasonableness shall be established from data or information which is available to the contracting officer without contacting the offeror. If after examination of all of the information sources they are still inadequate, and readvertising or negotiating with other sources of supply is not feasible, the contracting officer may then contact the offeror to obtain information necessary to establish price reasonableness. [40 FR 25451, June 16, 1975] 85A-2.407-3 Discounts.

(a) No discount offered for payment within less than 20 days will be considared in evaluating bids for award.

(b) When evaluating bids involving trade-in of old articles, discounts offered shall be computed on the entire purchase price of the new articles, without regard to the trade-in allowance for the old articles.

(c) All solicitations for offers shall contain the Prompt Payment Discount clause set forth in § 5A-2.201-77(c). [32 FR 9417, June 30, 1967, as amended at 88 FR 18374, July 10, 1973]

85A-2.407-5 Other factors to be considered.

The factors set forth below should, among other things, be considered in evaluating offers:

(a) The costs of contract award and contract administration. (See § 5A2.407-78.)

[86 FR. 14130, July 30, 1971]

§ 5A-2.407-6 Equal low bids.

(a) In breaking a tie of equal low bids, the factors used in accordance with § 1-2.407-6 for determining the successful bidder must have existed on the date of bid opening. Certifications which are granted after the bid opening date cannot be applied to breaking an equal low bid tie.

(b) When a bidder has submitted multiple bids which are equal in all respects to other low bids received under

(a) General. Letter B-92456 dated May 22, 1963, from the Comptroller General to the Administrator authorized the retention of all original contracts by executing offices of the General Services Administration. Prior to that date, it was required that the original of term contracts (other than Federal Supply Schedule contracts) for use by other Government agencies be filled with the General Accounting Office and consequently covered by the Standard Form 1036, Statement and Certificate of Award.

(b) Requirements in lieu of Standard Form 1036. Although the preparation of Standard Form 1036 is not required, the requirement for recording the method of purchase and basis for award is present. Such information shall be retained in the purchase case fille and, in addition to the information required by § 1-2.4077(b), shall include the number of firms circulated. Where contracts are awarded to other than the lowest bidder as to price, the original of each such contract shall contain the symbol "AOLB" in the top margin of the contract form, immediately above the "contract number" block on the form.

§ 5A-2.407-8 Protests against award.

All protests against award shall be handled in accordance with § 1-2.407-8 and this section.

(a) Protests lodged with the agency. Upon the receipt of a written protest, the contracting officer shall develop the facts, review the protest with assigned counsel, and prepare a written reply to the protester setting forth the contracting officer's final decision. Replies to protests received after award shall be prepared for the signature of the procuring director. When appropriate, concurrence is required from other officials (including any contract review committee) who are required to concur in the contract awards involved in the protest.

(b) Protests lodged with the General Accounting Office (GAO). Replies to protests lodged with GAO are prepared by the Office of General Counsel. These re

plies are based on a statement of fact and position prepared by the contracting officer and signed by the head of the procuring activity. In the case of a regional or commodity center protest, the statement of fact and position shall be submitted to the appropriate Central Office Assistant Commissioner for approval prior to forwarding to the Office of General Counsel.

(1) Submission of statement of fact and position. Within 6 workdays after receipt of the complete written statement of protest from GAO, the appropriate organizational element shall submit, in duplicate, a properly signed and approved statement of fact and position (with required exhibits) to the Office of General Counsel. Because of the short time frame allowed by GAO (25 workdays) for submission of the report, GAO usually informs the appropriate Assistant General Counsel telephonically of protests received or anticipated. This information is relayed immediately to the organizational element directly concerned. The compilation of facts and documentary evidence shall be started as soon as this informal notification of the protest is received by the organizational element. If the statement cannot be prepared within 6 workdays after receipt by the organizational element of the complete written grounds of the protest, the head of the procuring activity shall be notified in writing (with copy to appropriate Assistant General Counsel) of the reasons for the delay and the projected submission date. After submission of the statement to the Office of General Counsel, the contracting officer shall advise counsel of all new developments which may have a bearing on the case. When further actions are required, the contracting officer shall obtain the advice of assigned counsel.

(2) Preparation of statement of fact and position. This statement shall, in addition to that required by § 1-2.407-8 (a) (2), contain the elements set forth in (i) thru (ix), below. The contracting officer shall review the statement with assigned counsel prior to submission to the head of the procuring activity for signature.

(i) The identity of GAO protest (if made against a solicitation or award) by B-number (GAO case file number), solicitation number, and contract number (if award has been made).

(ii) The full corporate name of the protesting organization and other firms

involved when referenced for the first time in the position statement.

(iii) A statement whether the protest has been filed before or after award. If the protest has been filed after award, identify the awardee, the date of award, and the contract number.

(iv) A statement as to urgency of need for award. Indicate to what extent the delay in the award may result in significant supply difficulties and give a date when a determination is required for pending awards. (See § 5A-2.407-8 (b) (4) for action required if award must be made prior to resolution of protest).

(v) The date and time of bid opening (specify if the date of bid opening has been extended by subsequent amendments) and the total number of bidders.

(vi) An accurate, complete and current statement of facts, in chronological order of all relevant events and administrative actions taken. Include reasons for the actions taken and cite the authorities under which they were taken.

(vii) Any exhibits and/or documentary evidence, in duplicate, as set forth in FPR 1-2.407-8(a) (2) (i) through (vi). Include any other relevant documents believed helpful in determining the validity of the protest. (Exhibits or documentary evidence should be referenced and identified within the text of the position statement, alphabetically or numerically; e.g., Tab A, Exhibit 1, etc.)

(viii) A statement setting forth and answering point by point, if possible, all contentions, allegations, and issues raised by the protester.

(ix) Any comments or legal analysis (including legal precedents or authorities) received from assigned counsel.

(3) Notification of interested parties. Upon receipt of the complete written statement of protest from GAO, the contracting officer shall, with the concurrence of the appropriate division of the Office of General Counsel, furnish copies of the protest to the contractor (if award has been made) or all bidders who appear to have a substantial and reasonable prospect of receiving an award if the protest is denied. The covering letter shall advise that views or comments may be submitted to GAO, within 10 workdays after receipt, with a copy to the contracting officer. A copy of the reply shall be furnished the Office of General Counsel. (See § 5A-76.121 for sample letter.)

(4) Awards prior to resolution of protest. If award must be made prior to final

resolution of the protest pursuant to FPR 1-2.407-8 (b) (4), a written findings and determination must be prepared by the contracting officer and approved by the head of the Central Office service, or his designee, with the concurrence of the Assistant General Counsel. In the case of protests involving regional procurements, the findings and determination shall be reviewed and concurred in by the Regional Counsel prior to being submitted to the head of the Central Office service.

[40 FR 37038, Aug. 25, 1975]
§ 5A-2.407-52
prices.

Evaluation

of f.o.b.

(a) When an invitation for bids provides for bid prices based on delivery at destination, all bids based on f.o.b. shipping point shall be rejected. Where no acceptable bids based on f.o.b. destination are received, or where comparison of prices f.o.b. shipping point and f.o.b. destination indicates that readvertisement would otherwise be in the best interest of the Government, the requirement should be readvertised and provision made for bidders to bid both f.o.b. shipping point and f.o.b. destination.

(b) When the invitation permits bid prices on an f.o.b. destination basis or an f.o.b. shipping point basis, or both, bids shall be considered and award made on whichever basis will result in the lowest overall cost to the Government. In such cases, all pertinent factors, including transportation costs and bill of lading preparation and processing costs, shall be considered.

(c) The assistance of traffic management personnel shall be obtained whenever transportation must be considered in evaluating bids.

[39 FR 40293, Nov. 15, 1974] § 5A-2.407-53

documents.

Disposition of contract

(a) The originals of all rejected bids, related correspondence, and a copy of the abstract of bids shall be retained by the procuring activity for a period of 1 year. They shall then be forwarded to the appropriate administrative activity for processing in accordance with current procedures on retention and disposal of records. These records shall be kept available for inspection by authorized representatives of the General Accounting Office and the Office of Administration and may be forwarded to such offices upon request. Copies of rejected bids

which are not needed shall be destroyed after award.

(b) Each no-bid response to an invitation for bids (original only) shall be retained by the buying activity for a period of 3 months after the date of contract award and thereafter destroyed. [39 FR 40293, Nov. 15, 1974]

§ 5A-2.407-71 Awards involving related cases referred to higher authority.

When a case is to be or has been referred to higher authority for review, any action which might prejudice the freedom of higher authority to act on that case must be avoided. This includes other awards to the same bidder under the same solicitation.

[35 FR. 1014, Jan. 24, 1970]

§ 5A-2.407-72 Extension of time for bid acceptance.

(a) (1) Promptly after bids have been tabulated, and except as provided in subparagraphs (2) and (3) of this paragraph, a request for an extension of bid acceptance time shall be sent to each bidder who may be in line for award and whose bid specifies a bid acceptance time which is considered by the contracting officer to be insufficient for proper bid evaluation and award. Likewise, if later it becomes apparent to the contracting offlcer that he may be unable to make award within the specified acceptance time, he promptly shall request such acceptance time extensions as are necessary. If the case in question has been referred to another organizational element for action, that organizational element shall be notified of any extension obtained and requested to complete its action in time to permit the making of awards within the extended time.

(2) Where a special minimum bid acceptance time provision was included in the invitation for bids (see § 5A-2.20171), no bidder whose bid was nonresponsive because he offered a lesser time for bid acceptance than the minimum specified in the invitation shall be requested, or otherwise given an opportunity, to extend the time.

(3) A bidder whose bid is determined by the contracting officer and assigned legal counsel to be unacceptable shall not be requested, or otherwise given an opportunity to extend the time for bid acceptance.

(b) Requests for extension of bid acceptance time shall specify the additional acceptance time desired by the

Government, which time shall be reasonable under the circumstances.

(c) If a bidder does not grant the additional bid acceptance time requested, special action shall be taken to accomplish acceptance within the time allowed by the bidder (see § 5A-2.407-1). Should it be advisable to permit the bid to expire, the contracting officer shall promptly, and before the expiration of the bid, refer the case to the appropriate division director for decision.

(d) Appropriate legal counsel shall be consulted before an award is made in any case where the acceptance time of an otherwise acceptable bid has expired. [82 F.R. 9417, June 30, 1967, as amended at 35 F.R. 1014, Jan. 24, 1970; 39 FR 40293, Nov. 15, 1974]

88 5A-2.407-73-5A-2.407-75

served]

[Re

85A-2.407-76 Disposition of bid samples.

(a) Rejected or untested samples. Samples that were not destroyed in testing, or which there was no need to test shall be returned, when requested by bidders, at their expense.

(b) Accepted samples. At least one sample, properly identified, will be retained for each contract until performance is completed. The remaining samples that were not destroyed in testing shall be returned, when requested by bidders, at their expense.

(c) Inspection samples. When bid samples are accepted in accordance with 5A-2.202-4, the office that will perform the inspection shall be furnished samples of the accepted item. Contracting officers shall obtain the required number of samples and transmit them to the inspection office (s), together with information regarding the special characteristics required. After performance under a contract is completed, samples shall be returned, when requested by contractors, at their expense, in accordance with § 1-2.202-4(h).

[33 F.R. 630, Jan, 18, 1968] 85A-2.407-77

[Reserved]

§ 5A-2.407-78 Consideration of administrative costs before making small value awards.

(a) Administrative costs for issuing and administering separate contracts or purchase orders of small value may at times be greater than savings which appear attainable by purchasing all items

from the lowest bidder. To reduce the incidence of making these small awards at net losses to the Government, $50 shall be added in preaward evaluations as the Government's administrative expense for each separate award which does not exceed $2500.

(b) If, according to the foregoing, it is found to be advantageous for the Government to add a small award ($2500 or less) to a bidder already in line for award on other item(s), the de facto low bidder shall be advised that an award to him, even though he is the low bidder, would be costlier to the Government than if the award is made to the bidder already in line for other items because of the expense to the Government for administering a separate award. The low bidder may not be interested in receiving only a small part of the items quoted on because of the high administrative expense for small orders for himself and would be inclined to agree to forego the small award. Contracting officers shall obtain the offeror's agreement in writing and make it a part of the contract file.

(c) The above procedures do not apply in cases where a separate small award would further procurement objectives with regard to establishing competitive sources on new items for which initial demand is low or unknown, assisting small businesses including minority entrepreneurs, or maintaining bidding opportunities for local suppliers who have previously satisfactorily furnished the items involved.

[39 FR 40293, Nov. 15, 1974]

§ 5A-2.407-79 Bid guarantees.

See FPR 1-10 and GSPR 5A-10. [39 FR 40294, Nov. 15, 1974]

§ 5A-2.407-80 Availability of funds.

Prior to award, the contracting officer shall make certain that funds are available for the proposed purchase. See $5A-1.5306.

[39 FR 40294, Nov. 15, 1974]

§ 5A-2.407-81

Form for requesting ap

proval of awards.

See 5A-1.375 regarding the form and related instructions for use in connection with approval of proposed awards.

§ 5A-2.407-82 Preparation of documents for acceptance.

The acceptance of an offer received on SF 33, Solicitation, Offer, and Award,

shall be accomplished and documented as follows:

(a) Definite-quantity contracts-(1) Single consignee. Where only one consignee is involved, notice of award of contract shall be documented on either SF 33 (Award portion accomplished), or on GSA Form 300, Purchase Order, as determined most advantageous by the procuring activity.

(1) When SF 33 is used, the award portion on both the original and duplicate of the accepted offer shall be completed. The original contract shall be retained by the Government and the duplicate copy mailed to the contractor. A purchase (delivery) order also must be issued to provide shipping instructions and necessary information copies to others concerned.

(1) When GSA Form 300 is used, the block entitled "This order is issued pursuant to" shall be filled in by entering substantially the following: "Your offer on solicitation No. --- is accepted for items listed herein." Under this procedure, the original contract consists of the original bid signed by the contractor and copy No. 5 (paying office copy) of GSA Form 300, Purchase Order, signed by the contracting officer. The contractor's copy of the contract consists of his retained copy of the bid and copy No. 1 (original) of GSA Form 300, Purchase Order, signed by the contracting officer. (2) Multiple consignees. Award Standard Form 26, Award/Contract, normally is advantageous for contracts involving more than one consignee. Distribution on copies shall be in accordance with § 5A-76.201. To eliminate excess typing, die-cut stencils or reproducible masters of Standard Form 26 may be used incidental to providing the necessary number of copies. However, where numerous items on a single invitation for bids are awarded to one contractor, completion of the Award portion of Standard Form 33 may be more advantageous. Either method of documenting the award is authorized.

on

(b) Indefinite quantity contracts. Awards for indefinite quantity contracts may be documented on either Standard Form 26 or Standard Form 33. "Indefinite" shall be entered in the spaces provided for entering the quantity and dollar amount of such awards.

(c) Assignment of contract number. See 5A-1.352-1 regarding the requirement and system for contract numbering. 132 FR 9417, June 30, 1967, as amended at 36 FR 12165, June 26, 1971; 39 FR 40294, Nov. 15, 1974]

§ 5A-2.407-83 Notification of contract award.

(a) General. Successful bidders shall be notified of award by mailing or otherwise furnishing to such bidders, within the time specified for bid acceptance (see 85A-2.407-72), documents prepared in accordance with 5A-2.407-82. Bids specifying a certain number of days for acceptance may be accepted any time before midnight of the last day. For definition of what constitutes the actual award date see § 5A-2.407–1(d).

(b) Evidence of time of receipt. See FPR 1-1.316-4(e) and 5A-1.316-4.

(c) Postaward orientation conferences. For instructions on this subject see Subparts 1-1.18 and 5A-1.18.

[32 FR. 9417, June 30, 1967, as amended at 34 F.R. 438, Jan. 11, 1960; 36 FR. 13388, July 21, 1971] § 5A-2.407-84 Notification of proposed substantial awards and awards involving Congressional interest.

(a) Applicability: This section applies to notification of proposed awards resulting from either advertised or negotiated solicitations including modifications and renewals (1) when the dollar value exceeds or is estimated to exceed $100,000 except as shown in (b) below, and (2) when there is Congressional interest regardless of dollar value.

(1) When Congressional interest is involved, GSA Form 2932, Proposed Substantial Contract Awards (see § 5A16.950-2932), or a facsimile message shall be prepared for transmittal to the Assistant Administrator (AL) containing the following information:

Congressional Interest-(Name of Congressman or Senator)-(State)-Control No.

.—In behalf of (Name of firm and complete address)-If award is not proposed to that bidder, explain why).

(2) In addition to the requirement set forth in (a) (1) above (and in OAD 5410.1, chap. 5), where a Congressional inquiry is made orally with a contracting officer, and award or other information has been promised to a Congressman or Senator, GSA Form 2932, or the facsim