§ 1.1803-5 Conference procedure.

The chairman of the conference shall conduct the meeting. Unless a specific contract change has been agreed to by the contracting officer at the preliminary meeting of Government personnel, the chairman will emphasize that the conference is not being held for the purpose of changing the contract. The contracting officer may make commitments or give directions within the scope of his authority, and he shall reduce to writing and sign any such commitment or direction. Participants who are without authority to bind the Government contractually shall not take action which in any way alters the provisions of the contract. Information and guidance given merely to explain existing provisions and requirements of the contract may, however, be given, but only by participants acting within the scope of their authority. All such information and guidance shall be specifically included in the summary report (see § 1.1805).

§ 1.1804

Subcontract conferences.

The prime contractor is generally responsible for conducting any necessary post-award orientation conferences with subcontractors. However, in exceptional cases involving subcontracted items or services of technical complexity, the prime contractor may invite the participation of the Government in such conferences or the Government may request the prime contractor to initiate such a conference with the subcontractor. Representatives from the Contract Administration Office administering the prime contract and subcontract should be included as participants. Government participants in such conferences must recognize the lack of privity of contract between the Government and the subcontractor, and shall not give commitments, directions, or take any action which change or are inconsistent with the provisions of the subcontract. § 1.1805 Forms and reports.

Post-Award Conference Record (DD Form 1484) shall be used in preparing the agenda and conducting the conference to assure that all significant matters are covered. A summary report of the conference shall be prepared under the supervision of the chairman and signed by him. The report shall cover all items discussed, including areas requiring resolution, controversial matters, and the names of the participants assigned

responsibility for further actions, including the due dates for such actions. DD Form 1484 may be utilized as the summary report, where appropriate. Copies of the summary report shall be furnished to the purchasing office, the contract administration office, the contractor, and other participants and activities requiring the information.

§ 1.1806 Post-award letters.

In less complex contracts, a letter to the contractor may suffice in lieu of a conference. When such a letter is appropriate, it should identify the Government representative responsible for administering the contract, and cite any unusual contract requirements such as special reports, revised military specifications, preproduction tests, subcontracting consent requirements, Government property to be furnished, and any other significant requirements. (See, for example, the items in DD Form 1484.)

2.207

2.208

2.209

2.210

Small business and labor surplus area set-asides.

Amendment of invitations for bids. Cancellation of invitations before opening.

Qualified products.

Release of procurement information.

Subpart C-Submission of Bids

Responsiveness of bids.

Time of bid submission.
Late bids.

General.

2.301

2.302

2.303

2.303-1

2.303-2

2.303-3

Mailed bids.

2.303-4

2.303-5

Consideration for award.

Telegraphic bids.

Hand-carried bids.

General.

Conditions for use.

AUTHORITY: The provisions of this Part 2 issued under R.S. 161, sec. 2202, 70A Stat. 120; 5 U.S.C. 22, 10 U.S.C. 2202. Interpret or apply secs. 2301-2314, 70A Stat. 127-133; 10 U.S.C. 2301-2314.

§ 2.000 Scope of part.

This part sets forth (a) the basic requirements for procurement of supplies (including construction) and services by formal advertising, (b) the information to be contained in solicitations of bids, (c) methods of soliciting bids, (d) policies with respect to the submission of bids, and (e) requirements with respect to the opening and evaluation of bids and the awarding of contracts. [25 F.R. 14112, Dec. 31, 1960]

Subpart A-Use of Formal Advertising

SOURCE: The provisions of this Subpart A appear at 25 F.R. 14113, Dec. 31, 1960, except as otherwise noted.

§ 2.101 Meaning of formal advertising.

Formal advertising means procurement by competitive bids and awards as prescribed in this section, and involves the following basic steps:

(a) Preparation of the invitation for bids, describing the requirements of the Government clearly, accurately, and completely, but avoiding unnecessarily restrictive specifications or requirements which might unduly limit the number of bidders. The term "invitation for bids" means the complete assembly of related documents (whether attached or incorporated by reference) furnished prospective bidders for the purpose of bidding;

(b) Publicizing the invitation for bids, through distribution to prospective bidders, posting in public places, and such other means as may be appropriate, in sufficient time to enable prospective bidders to prepare and submit bids before the time set for public opening;

(c) Submission of bids by prospective contractors, and

(d) Awarding the contract, after the bids are publicly opened to that responsible bidder whose bid, conforming to the

even

(a) Procurement shall be made by formal advertising pursuant to 10 U.S.C. 2304 (a) whenever such method is feasible and practicable under the existing conditions and circumstances though such conditions and circumstances would otherwise satisfy the requirements of Subpart B, Part 3 of this chapter. In accordance with this requirement, procurements shall generally be made by soliciting bids from all qualified sources of supplies or services deemed necessary by the contracting officer to assure full and free competition consistent with the procurement of the required supplies or services. Current lists of bidders shall be maintained by each purchasing office in accordance with § 2.205.

(b) 10 U.S.C. 2306(f) provides that a contractor or subcontractor shall be required to submit cost or pricing data for certain contract modifications, and shall be required to certify that, to the best of his knowledge and belief, the cost or pricing data he submitted was accurate, complete, and current. To insure compliance with this requirement, contracting officers shall follow the instructions set forth in § 3.807-3 of this chapter before agreeing to a price adjustment of a formally advertised contract.

[28 F.R. 2093, Mar. 5, 1963, as amended at 29 F.R. 6913, May 27, 1964]

§ 2.102-2 Classified procurements.

Formal advertising shall be used for classified procurements Provided, After due consideration is given to security requirements in accordance with Departmental procedures, such method can be used without violating security requirements (see §1.201-22 of this chapter). Otherwise, classified procurements will be negotiated pursuant to 10 U.S.C. 2304 (a) (12) (see § 3.212 of this chapter) or other appropriate exception set forth in 10 U.S.C. 2304 (a) (see Subpart B, Part 3 of this chapter).

[29 F.R. 2828, Feb. 29, 1964]

§ 2.103 General requirements for formal advertising.

No award shall be made as a result of formal advertising unless:

(a) Bids have been solicited as required by Subpart B of this part;

(b) Bids have been submitted as required by Subpart C of this part;

(c) Such business clearances and approvals as are required by Departmental procedures have been obtained; and

(d) The award is to the responsible bidder (see § 1.902 of this subchapter) whose bid is responsive to the invitation for bids and is most advantageous to the Government, price and other factors considered, as prescribed in Subpart D of this part.

§ 2.104 Types of contracts. § 2.104-1

General.

Contracts awarded after formal advertising shall be of the firm fixed-price type, except that fixed-price contracts with escalation may be used where some flexibility is necessary and feasible. § 2.104-2 Firm fixed-price contracts. See § 3.404-2 of this subchapter.

[25 F.R. 14113, Dec. 31, 1960, as amended at 27 F.R. 4015, Apr. 27, 1962]

§ 2.104-3 Fixed-price contracts with escalation.

Escalation clauses are not normally desirable, but in appropriate cases clauses providing for upward and downward revision of prices may be used, in accordance with § 3.404-3 of this subchapter, in order to protect the interest of both the Government and supplier. In addition, where the contracting officer on the basis of his knowledge of the market or previous advertisements for like items, except that a requirement for firm fixed-price bids will unnecessarily restrict competition, or unreasonably increase bid prices, invitations for bids may include an escalation clause. The clause set forth in § 7.106-1 or that in § 7.106-2 of this subchapter shall be used if applicable. If neither of these clauses is applicable, an escalation clause approved by the Department concerned may be included. Any escalation clause shall provide an escalation ceiling identical for all bidders so that each bidder is afforded an equal opportunity to bid on the escalation basis. In evaluating bids, see § 2.407-4.

[25 F.R. 14113, Dec. 31, 1960, as amended at 27 F.R. 4015, Apr. 27, 1962]

§ 2.104-4 Indefinite delivery type con

tracts.

(a) Definite quantity contracts. See § 3.409 (a) of this chapter.

§ 2.105

Solicitation for informational or planning purposes.

See § 1.309 of this subchapter.

Subpart B-Solicitation of Bids

SOURCE: The provisions of this Subpart B appear at 25 F.R. 14113, Dec. 31, 1960, except as otherwise noted.

§2.201 Preparation of invitation for bids.

Forms used in inviting bids are prescribed in Subparts A and D, Part 16 of this subchapter. Invitation for bids shall contain the applicable information described in paragraphs (a) and (b) of this section and any other information required for a particular procurement.

(a) For supply and service contracts, including construction, invitation for bids shall contain the following information if applicable to the procurement involved.

(1) Invitation number.

(2) Name and address of issuing activity.

(3) Date of issuance.

(4) Date, hour, and place of opening. See 2.202-1 concerning bidding time. Prevailing local time shall be used. Timing by the 24-hour clock shall not be used except where customary in the industry. The exact location of the bid depositary, including the room and building numbers, and a statement that hand-carried bids must be deposited therein.

(5) Number of pages.

(6) Requisition or other purchase authority and appropriation and accounting data.

(7) A description of supplies or services to be furnished under each item, in sufficient detail to permit full and free competition. Reference to specifications shall include identification of all amendments or revisions thereof, applicable to the procurement and dates of both the specifications and the revisions (see § 1.1201 (a) of this chapter). Such description shall comply with Subpart L, Part 1 of this chapter, relating to specifications. The item or category of items being procured also will be shown in proper, simple nomenclature in large bold type at the bottom of the cover page of each invitation for bids.

(8) The time of delivery or performance (see § 1.305 of this subchapter).

(9) Permission, if any, to submit telegraphic bids (see § 2.202-2).

(10) Permission, if any, to submit alternate bids, including alternate materials or designs (see § 1.1207 of this subchapter).

(11) A statement on the face thereof or on a cover sheet the invitation that "Bids must set forth full, accurate, and complete information as required by this invitation for bids (including attachments). The penalty for making false statements in bids is prescribed in 18 U.S.C. 1001." (See §§ 2.405 and 2.406.) (12) Bid guarantee, performance bond, and payment bond requirements, if any (see Subpart A, Part 10 of this chapter). If a bid bond or other form of bid guarantee is required, the solicitation shall include the provisions required by § 10.102-4 of this chapter.

(13) Any authorized special provisions relating to Government-furnished property proposed to be furnished for the performance of the contract.

(14) A provision that if the bidder plans to use, in performing the work bid upon, any items of Government property in the bidder's possession under a facilities contract or other agreement independent of the invitation for bids, the bidder shall so state in the bid and, upon request of the contracting officer, submit evidence that a facilities contract or other separate agreement authorizes the bidder to use each item of such Government property for performing the work bid upon.

(15) When considered necessary by the contracting officer, a requirement that all bids must allow a period for acceptance by the Government of not less than a minimum period stipulated in the invitation for bids, and that bids offering less than the minimum stipulated acceptance period will be rejected. The minimum period so stipulated should be no more than reasonably required for evaluation of bids and other pre-award processing. To accomplish the foregoing, a paragraph substantially as follows may be included in the Schedule or other appropriate place in the Invitation for Bids:

(16) In unusual cases, where bidders are required to have special technical qualifications due to the complexity of the equipment being purchased or for some other special reason, a statement of such qualifications.

(17) Any authorized special provisions, necessary for the particular procurement, relating to such matters as progress payments (see §§ 163.73 through 163.73-6 of Subchapter E of this chapter), patent licenses, liquidated damages, profit limitations, escalation (see § 2.1043), Buy American Act (see §§ 6.104-3 and 6.204-4 of this subchapter), etc.

(18) Such general contract provisions or conditions as are required by law or by this subchapter.

(19) Any applicable wage determinations of the Secretary of Labor (for construction, alteration, or repair contracts).

(20) If Government costs or expenditures other than bid prices are to be considered in the evaluation of bids, such factors must be identified and included.

(21) If the schedule contains a price escalation clause, the following provision:

Evaluation of bids subject to escalation: Notwithstanding the provisions of the clause entitled "Price Escalation", bids shall be evaluated on the basis of quoted prices without the allowable escalation being added. Bids which provide for a ceiling lower than that stipulated in the clause will also be evaluated on this basis. Bids which provide for escalation that may exceed the maximum escalation stipulated in the clause, or which limit or delete the downward escalation stipulated in the clause shall be rejected as nonresponsive.

(22) Unless contained elsewhere in the invitation, a statement as follows:

In the event of an inconsistency between provisions of this invitation for bids, the inconsistency shall be resolved by giving precedence in the following order: (1) The Schedule; (2) Terms and Conditions of the Invitation for Bids; (3) General Provisions; (4) other provisions of the contract, whether incorporated by reference or otherwise; (5) the Specifications.

(23) When considered necessary by the contracting officer to prevent practices prejudicial to fair and open competition, such as improper kinds of multiple bidding, a requirement that each bidder submit with his bid an affidavit concerning his affiliation with other concerns. To accomplish the foregoing, a paragraph substantially as follows may be

as

(1) Whether the bidder has any affiliates; (ii) The names and address of all affiliates of the bidder; and

(iii) The names and addresses of all persons and concerns exercising control or ownership of the bidder and any or all of his affiliates, and whether as common officers, directors, stockholders holding controlling interest, or otherwise.

Failure to furnish such an affidavit may result in rejection of the bid. [End of Notice.]

Failure to furnish such an affidavit shall be treated as a minor informality or irregularity (see § 2.405).

(24) Directions for obtaining copies of any documents, such as plans, drawings, and specifications, which have been incorporated by reference (see § 1.1203 of this subchapter).

(25) Pending revision of paragraph 4 of the Terms and Conditions of the Invitation for Bids on the back of Standard Form 30 (October 1957 edition) and Standard Form 33 (October 1957 edition) and of paragraph 7 of Standard Form 22 (January 1961 edition), the following provision shall be substituted, as to each form, for the cited paragraph: LATE BIDS AND MODIFICATIONS OR WITHDRAWALS (JAN. 1964)

(a) Bids and modifications or withdrawals thereof received at the office designated in the invitation for bids after the exact time set for opening of bids will not be considered unless:

(i) They are received before award is made; and either

(ii) They are sent by registered mail, or by certified mail for which an official dated post office stamp (postmark) on the original Receipt for Certified Mail has been obtained, or by telegraph if authorized; and it is determined by the Government that the late receipt was due solely to delay in the mails, or delay by the telegraph company, for which the bidder was not responsible; or

(iii) If submitted by mail (or by telegram if authorized), it is determined by the Government that the late receipt was due solely to mishandling by the Government after receipt at the Government installation; Provided, That timely receipt at such in