tracting officer shall review the applicable qualified products list to ascertain whether the number of sources is adequate for competition prior to inviting bids or soliciting proposals. If, in the opinion of the contracting officer, the number of sources is inadequate, action shall be taken as prescribed below:

(a) The contracting officer should request the activity that prepared the specification to provide information concerning the status of tests on additional products, including the date when such tests will be completed, so that the opening of bids or the submission of proposals may be so scheduled as to allow completion of the tests.

(b) If no tests are contemplated or under way, the contracting officer should further request the preparing activity to advise whether a means of quality assurance other than qualification approval may be substituted in the procurement. § 1.1110 Reporting nonconformance with specification requirements.

If a supplier on the qualified products list repeatedly submits products not meeting specification requirements for inspection, resubmits products previously rejected without correcting the defects, or is otherwise unsatisfactory in the performance of contracts, he shall be reported to the activity that prepared the specification for a determination as to whether the supplier's product shall be removed from the list.

§ 1.1206

Purchase descriptions. [27 F.R. 1693, Feb. 22, 1962]

§ 1.1206-1 General.

(a) A purchase description may be used in lieu of a specification when authorized by § 1.1202(b) and, subject to the restriction on repetitive use in § 1.1202(b) (7), where no applicable specification exists. A purchase description should set forth the essential characteristics and functions of the items or materials required. Purchase descriptions shall not be written so as to specify a product, or a particular feature

of a product, peculiar to one manufacturer and thereby preclude consideration of a product manufactured by another company, unless it is determined that the particular feature is essential to the Government's requirements, and that similar products of other companies lacking the particular feature would not meet the minimum requirements for the item. Generally, the minimum acceptable purchase description is the identification of a requirement by use of brand name followed by the words "or equal." This technique should be used only as a last resort when an adequate specification or more detailed description cannot feasibly be made available in time for the procurement under consideration. Purchase descriptions of services to be procured should outline to the greatest degree practicable the specific services the contractor is expected to perform.

(b) The words "or equal" should not be added when it has been determined in accordance with paragraph (a) of this section that only a particular product meets the essential requirements of the Government, as, for example, (1) where the required supplies can be obtained only from one source; (2) procurements negotiated under § 3.207 of this chapter for specified medicines or medical supplies where it has been determined that only a particular brand name will meet the essential requirements of the Government; or (3) procurements negotiated under § 3.208 of this chapter for supplies for resale where it has been determined by a selling activity that only a particular brand name will meet the desires or preferences of its patrons.

[27 F.R. 1693, Feb. 22, 1962]

§ 1.1206-2 Brand name or equal purchase description.

(a) Purchase descriptions which contain references to one or more brand name products followed by the words "or equal" may be used only when authorized by § 1.1202(b) and in accordance with §§ 1.1206-3 and 1.1206-4. The term "brand name product" means a commercial product described by brand name and make or model number or other appropriate nomenclature by which such product is offered for sale to the public by the particular manufacturer, producer, or distributor. Where feasible, all known acceptable brand name products should be referenced. Where a "brand name or equal" purchase description is used, prospective contractors must

be given the opportunity to offer products other than those specifically referenced by brand name if such other products will meet the needs of 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. For example, where interchangeability of parts is required, such requirements should be specified. Purchase descriptions should 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; and

(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. The contracting officer will insure that a copy of any catalogs referenced (except parts catalogs) is available on request for review by bidders at the purchasing office.

[27 F.R. 1693, Feb. 22, 1962]

BRAND NAME OR EQUAL (Nov. 1961)

(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 TO 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 (i) include in his bid a clear description of such proposed modifications and (ii) clearly mark any descriptive material to show the proposed modifications.

bid

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

(c) (1) Where component parts of an end item are described in the invitation for bids by a "brand name or equal" purchase description and the contract

ing officer determines that application of the clause in paragraph (b) of this section to such component parts would be impracticable, the requirements of paragraph (a) of this section shall not apply with respect to such component parts. In such cases, if the clause is included in the Invitation for Bids for other reasons, a statement substantially as follows also shall be included:

or

The clause entitled "Brand Name Equal" does not apply to the following component parts:

(List the component parts as to which the clause does not apply.)

(2) In the alternative, if the contracting officer determines that the clause in paragraph (b) of this section should apply to only certain such component parts, the requirements of paragraph (a) of this section shall apply to such component parts and a statement substantially as follows also shall be included:

The clause entitled "Brand Name or Equal" applies to the following component parts: (List the component parts to which the clause applies.)

(d) 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.

[27 F.R. 1693, Feb. 22, 1962]

§ 1.1206-4 Bid evaluation and award"brand name or equal" purchase 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 § 1.1206-3 (b) 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 identi

fication shall include any brand name and 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 § 1.1206-3(b) was applicable to such component parts or accessories (see § 1.12063(c)).

[27 F.R. 1693, Feb. 22, 1962]

§ 1.1206-5 Procedure for negotiated

procurements.

(a) The policies and procedures prescribed in §§ 1.1206-2 through 1.1206-4 for formally advertised procurements shall be generally applicable to negotiated procurements.

(b) The clause in § 1.1206-3(b) 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.

[27 F.R. 1693, Feb. 22, 1962]

Subpart M-Transportation

Unless there are valid reasons to the contrary, the procurement of supplies from sources within the United States for ultimate delivery to destinations within the United States shall be in accordance with the following policy:

(a) When it is estimated that a contract will require no shipment to a single destination which will equal 20,000 pounds, delivery shall be on the basis of all transportation charges paid to destination; or

(b) When it is estimated that a contract will require one or more shipments of 20,000 pounds or more to any single destination, delivery shall be on the basis of whichever of the following is more advantageous to the Government;

(1) F.o.b. carrier's equipment, wharf, or freight station, at the Government's option, at a specified point at or near contractor's plant; or

(2) All transportation charges paid to destination. Solicitations shall provide that bidders or offerors may make bids or proposals on the basis described in subparagraph (1) of this paragraph or this subparagraph, or both. Justification for the solicitation of bids or proposals for procurement of supplies other than as described in this section shall be recorded and the contract file documented accordingly (see § 1.308). [26 F.R. 9634, Oct. 12, 1961]

§ 1.1302-2 Shipments from the United States for Overseas Delivery.

(a) Economies in transportation within the United States are often available when Government procurement is made on an f.o.b. origin basis due to lower freight rates available to the Government and not to the commercial shipper (see § 1.1309). In addition, Government procurement on a f.o.b. origin basis normally affords greater flexibility by permitting the selection of the port of export and ocean transportation providing the lowest overall Government cost to overseas destination.

(b) Unless there are valid reasons to the contrary, purchases of supplies originating within the United States for ultimate delivery to destinations outside the United States shall be made on the basis of delivery f.o.b. carrier's equipment, wharf, or freight station, at the Government's option, at a specified city or shipping point at or near the contractor's plant (see § 1.1305-3). This policy applies to supplies to be shipped either directly to a port area for export or to a storage or holding area for subsequent forwarding to a port area for export.

(c) Justification for the solicitation of bids or proposals for procurement of supplies on other than an f.o.b. origin basis shall be recorded and the contract file documented accordingly (see § 1.308). The following examples are situations considered to be valid justifications for procuring on other than f.o.b. origin basis when inspection and acceptance conditions are compatible (see Part 14 of this chapter) and economies to the Government can be realized:

(1) Where it is estimated a contract will require no shipment to a single destination which will equal or exceed 10,000 pounds and the commodity does not require an export release in accordance with Chapter 202, Military Traffic Management Regulations (AR 55-355

C.S.; OPNAVINST 4600.8; AFM 75-2, as amended; and NAVNC 1175);

(2) Where supplies are priced the same for delivery throughout the United States (nationally priced) or a specified region thereof (regionally priced) regardless of the point at which the Government accepts delivery;

(3) Where bulk supplies, such as coal, require other than Government owned or operated port handling, storage, and loading facilities; and

(4) Where commercial overland freight rates for forest products, such as lumber, are too low for the negotiation of special rates.

[26 F.R. 9634, Oct. 12, 1961]

Solicitations for supplies to be purchased on any of the bases designated in §§ 1.1305-2 through 1.1305-5 shall include, in addition to the information set forth in the respective subparagraphs, so much of the following information as is pertinent to the particular procurement and shall require prospective suppliers to furnish the Government such of the following as may be appropriate.

(a) Method of shipment, such as rail, water, air, or truck;

(b) Minimum size of shipments, such as carloads, truckloads, less than carloads, less than truckloads; (where appropriate for evaluation or other purposes, a provision substantially as set forth in § 2.201(b) (12));

(c) Guaranteed maximum shipping weights (and dimensions if applicable); (If shipping weights (and dimensions if applicable) of items to be procured are not shown in the solicitation and may vary among prospective suppliers with a resultant variation in transportation costs and such costs are made a factor in bid evaluation, the schedule will provide for insertion by the supplier of the applicable guaranteed maximum shipping weights (and dimensions if applicable) in spaces provided after each item (or elsewhere in the schedule) and a provision substantially as set forth in §2.201 (b) (13) of this subchapter shall also be included.);

(d) Packing, crating and other preparations;

(e) Transit arrangements (§ 1.1308); and

(f) Any other shipping information required for evaluation.

[26 FR. 5301, June 14, 1961]

Generally, solicitations for supplies to be purchased f.o.b. destination shall provide that supplies shall be delivered, all transportation charges paid by the contractor, to the specified destination. The solicitation shall inform prospective suppliers of any known shortage of transportation facilities at destination or other factors which may affect the supplier's transportation costs. When f.o.b. destination bids only are desired, the invitation for bids shall specify that bids submitted on a basis other than f.o.b. destination will be rejected as nonresponsive.

[26 F.R. 5301, June 14, 1961]

§ 1.1305-4 FOB origin.

Generally, solicitations for supplies to be purchased f.o.b. origin shall provide for delivery, at the Government's option, f.o.b. carrier's equipment, wharf, or freight station at a city or shipping point to be specified by the bidder or offeror at or near the contractor's plant. This will enable the military traffic management offices, in issuing routing instructions, to select the mode of transportation which will provide the required service at the lowest overall cost. When destinations are known, or if unknown but tentative destinations are designated (see 1.1305-5), the solicitation shall state that bids or proposals will be evaluated on the basis of the lowest overall cost to the Government, taking account of transportation costs to the Government from point of origin to the designated domestic or overseas destinations. Thus, when material is to be purchased f.o.b. origin in accordance with § 1.1302-2 for ultimate delivery to known destinations outside the United States, the solicitation shall state that bids or proposals shall be evaluated so as to take into account the cost to the Government

of shipment from the point of origin to the overseas destinations (see § 1.1313). When f.o.b. origin bids only are desired, the invitations for bids will specify that bids submitted on a basis other than f.o.b. carrier's equipment, wharf, or freight stations at a specified city or shipping point at or near the contractor's plant, will be rejected as nonresponsive.

[26 F.R. 5301, June 14, 1961]

§ 1.1305-5 Destination unknown.

When the exact destinations of the supplies being purchased are not known at the time bids or proposals are solicited, but the general location of the destination, such as East Coast, Middle West, or West Coast, is known, a definite place or places shall be designated as the point to which transportation costs will be computed-but only for the purpose of evaluating bids or proposals. The solicitation shall specify that bids or proposals should be submitted f.o.b. origin and that shipments will be made on Government bills of lading. The solicitation shall state:

For the purpose of evaluating (bids) (proposals), and for no other purpose, the final destination for the supplies will be considered to be as follows:

(Name destinations)

Invitations for bids shall contain a statement that bids submitted on a basis other than f.o.b. origin will be rejected as nonresponsive.

[26 F.R. 5301, June 14, 1961]

§ 1.1309 Volume shipments within the United States.

Procurements involving planned volume movements between points in the United States as defined in the Military Traffic Management Regulation (AR 55355 c.s.; OPNAVINST 4600.8; AFM 75–2, as amended; and NAVMC 1175), shall be referred at the earliest practicable time to the local transportation officer or traffic analyst serving the purchasing activity. This will permit a determination of the reasonableness of applicable current rates, and when appropriate negotiation of adjusted or modified rates, in accordance with the above regulation. Generally, carriers are required by both Federal and State laws to charge all shippers equally for like transportation and associated services. However, when Government traffic possesses more favorable transportation characteristics (greater volume, heavier