§ 1-1.1207 Disclosure of preaward data.

Data, including information obtained from a preaward survey, accumulated for purposes of determining the responsibility of a prospective contractor shall not be released outside the Government, and shall not be made available for inspection by individuals, firms, or trade organizations. Such data may be disclosed to, or summarized for, other elements within the Government upon request. Prior to making a determination of responsibility, such data may be discussed with the prospective contractor as determined necessary by the purchasing office. After an award, the findings of the preaward survey may be discussed by the contracting officer with the company surveyed as provided in § 12.408.

Subpart 1-1.13—Minority Business Enterprises

SOURCE: Subpart 1-1.13 appears at 36 FR 17509, Sept. 1, 1971, unless otherwise noted.

§ 1-1.1300 Scope of subpart.

This subpart contains policies, procedures, and contract clauses applicable to the participation of minority business enterprises in Government procurement at both the prime and subcontract level which are designed to carry out the purposes of Executive Order 11458, March 5, 1969, as superseded by Executive Order 11625, October 13, 1971.

[40 FR 25674, June 18, 1975]

$1-1.1301 Applicability.

This subpart applies only in the United States. As used in this subpart, the term "United States" means the States, its territories and possessions, the Commonwealth of Puerto Rico, the Trust Territory of the Pacific Islands, and the District of Columbia.

[40 FR 25674, June 18, 1975]

§ 1-1.1302 Agency programs.

(a) Minority business enterprise programs shall be established by agencies in the procuring activities designated by each agency. The objective of these

programs is to facilitate the participation of minority business enterprises in Government procurement. Accordingly, designations shall be made and actions shall be taken by designees in a manner which will result in the maximum practicable achievement of that objective. The head of each designated procuring activity, or his authorized representative (as provided by agency procedures), shall be responsible for administering the procuring activity's minority business enterprise program which, at a minimum, shall provide for the activity to do the following:

(1) Seek out minority business enterprises and facilitate the placement of such concerns on the agency's source lists;

(2) Solicit offers from the minority business enterprises on the agency's source lists;

(3) Counsel minority business enterprises with respect to business opportunities for the purpose of enhancing their potential participation in Government procurement;

(4) Ensure that minority business enterprises will have an equitable opportunity to compete for contracts, particularly by arranging (i) solicitations, (ii) time for the preparation of bids, (iii) quantities, (iv) specifications, and (v) delivery schedules, to facilitate the participation of minority business enterprises;

(5) Establish operating procedures which accomplish the requirements of this section;

(6) Maintain records showing with respect to minority business enterprises (i) concerns on source lists, (ii) concerns solicited, and (iii) dollar value of awards to such concerns;

(7) Submit semiannual reports based on the data developed pursuant to paragraph (a)(6) of this section to the agency office responsible for the overall management of the agency's minority business enterprise program;

(8) Obtain data on subcontract awards to minority business enterprises on Optional Form 61 from prime contractors which have the Minority Business Enterprise Subcontracting Program clause in their contracts; and

(9) Make data on subcontract awards to minority business enterprises available to agency personnel responsible for the agency's semiannual report on Standard Form 37, Report on Procurement by Civilian Executive Agencies.

(b) The agency office which has overall responsibility for the agency's minority business enterprise program shall review the semiannual reports submitted by procuring activities and shall take action as may be appropriate to ensure the effectiveness of the programs of the agency's individual procuring activities.

[40 FR 25674, June 18, 1975]

§ 1-1.1303 Solicitation representation.

The following representation shall be included in all solicitations other than those involving small purchases made in accordance with Subpart 1-3.6 and all contracts, other than small purchases, which are awarded without reference to a solicitation.

MINORITY BUSINESS ENTERPRISE

The offeror represents that he [ ] is, [ ] is not, a minority business enterprise. A minority business enterprise is defined as a "business, at least 50 percent of which is owned by minority group members or, in case of publicly owned businesses, at least 51 percent of the stock of which is owned by minority group members." For the prupose of this definition, minority group members are Negroes. Spanish-speaking American persons, American-Orientals, American-Indians, American-Eskimos, and AmericanAleuts.

Failure to execute the representation will be deemed a minor informality and the bidder or offeror shall be permitted to satisfy the requirement prior to award (see § 1-2.405).

[40 FR 25674, June 18, 1975]

§§ 1-1.1304-1-1.1309 [Reserved]

§ 1-1.1310 Subcontracting with minority business enterprises.

§ 1-1.1310-1 General.

It is the policy of the Government that the maximum practicable opportunity to participate in the performance of Government contracts be provided to minority business enterprises as subcontractors and suppliers to con

tractors performing work or rendering services as prime contractors or subcontractors under Government procurement contracts.

§ 1-1.1310-2 Required clauses.

(a) The Utilization of Minority Business Enterprises clause set forth in this § 1-1.1310-2(a) shall be included in all contracts in amounts which may exceed $10,000 except (1) contracts which, including all subcontracts thereunder, are to be performed entirely outside the United States, its possessions, and Puerto Rico, and (2) contracts for services which are personal in nature.

UTILIZATION OF MINORITY BUSINESS

ENTERPRISES

(a) It is the policy of the Government that minority business enterprises shall have the maximum practicable opportunity to par ticipate in the performance of Government contracts.

(b) The Contractor agrees to use his best efforts to carry out this policy in the award of his subcontracts to the fullest extent consistent with the efficient performance of this contract. As used in this contract, the term "minority business enterprise" means a business, at least 50 percent of which is owned by minority group members or, in case of publicly owned businesses, at least 51 percent of the stock of which is owned by minority group members. For the purposes of this definition, minority group members are Negroes, Spanish-speaking American persons, American-Orientals, American-Indians, American-Eskimos, and American Aleuts. Contractors may rely on written representations by subcontractors regarding their status as minority business enterprises in lieu of an independent investigation.

(b) The Minority Business Enterprises Subcontracting Program clause set forth in this § 1-1.1310-2(b) shall be included in all contracts which may exceed $500,000 which contain the clause required by § 1-1.1310-2(a), and which, in the opinion of the procuring activity, offer substantial subcontracting possibilities. Furthermore, prime contractors who are to be awarded contracts which may not exceed $500,000, but which, in the opinion of the procuring activity, offer substantial subcontracting possibilities shall be urged to accept this clause.

MINORITY BUSINESS ENTERPRISES

SUBCONTRACTING PROGRAM

(a) The Contractor agrees to establish and conduct a program which will enable minority business enterprises (as defined in the clause entitled "Utilization of Minority Business Enterprises") to be considered fairly as subcontractors and suppliers under this contract. In this connection, the Contractor shall

(1) Designate a liaison officer who will administer the Contractor's minority business enterprises program.

(2) Provide adequate and timely consideration of the potentialities of known minority business enterprises in all “make-or-buy” decisions.

(3) Assure that known minority business enterprises will have an equitable opportunity to complete for subcontracts, particularly by arranging solicitations, time for the preparation of bids, quantities, specifications, and delivery schedules so as to facilitate the participation of minority business enterprises.

(4) Maintain records showing (i) procedures which have been adopted to comply with the policies set forth in this clause, including the establishment of a source list of minority business enterprises, (ii) awards to minority business enterprises on the source list, and (iii) specific efforts to identify and award contracts to minority business enterprises.

(5) Include the Utilization of Minority Business Enterprises clause in subcontracts which offer substantial minority business enterprises subcontracting opportunities.

(6) Cooperate with the Contracting Officer in any studies and surveys of the Contractor's minority business enterprises procedures and practices that the Contracting Officer may from time to time conduct.

(7) Submit periodic reports of subcontracting to known minority business enterprises with respect to the records referred to in subparagraph (4), above, in such form and manner and at such time (not more often than quarterly) as the Contracting Officer may prescribe.

(b) The Contractor further agrees to insert, in any subcontract hereunder which may exceed $500,000, provisions which shall conform substantially to the language of this clause, including this paragraph (b), and to notify the Contracting Officer of the names of such subcontractors.

[36 FR 17509, Sept. 1. 1971, as amended at 40 FR 44138, Sept. 25, 1975]

Subpart 1-1.14 [Reserved]

Subpart 1-1.15 [Reserved]

Subpart 1-1.16—Reports of Identical Bids

§ 1-1.1601 General.

(a) This Subpart 1-1.16, developed cooperatively with the Department of Justice, prescribes procedures for submitting reports to the Attorney General in accordance with Executive Order No. 10936 of April 24, 1961 (3 CFR, 1959-1963 Comp., pp. 466-468), when identical bids are received in connection with the procurement of personal property or nonpersonal services (including construction).

(b) The purpose of the Executive order is to discourage identical bidding; to reduce the costs of the Government; to aid in the enforcement of the antitrust laws and the maintenance of a competitive economy; and to provide the Attorney General such information as may tend to establish the presence of a conspiracy in restraint of trade and which may warrant further investigation with a view to preferring civil or criminal charges.

(c) The reports required by this subpart are in addition to and are not to be considered as satisfying the requirements of Subpart 1-1.9 for reporting cases of possible antitrust law violations to the Attorney General.

§ 1-1.1602 Definitions.

As used in this Subpart 1-1.16, the following terms shall have the meanings set forth:

(a) "Identical bids" means two or more bids for the same line item which:

(1) Are identical on their face (disregarding the application of evaluation factors such as discount and transportation cost) as to unit price or total line item amount; or

(2) Are found, in the normal process of evaluating bids for award, to be identical as to unit price or total line item amount. (Line item evaluation computations beyond those normally made to determine the low acceptable bidder are not required.)

(b) "Line item" means a procurement item (as defined in § 1-1.220) specified in an invitation for bids which, under the terms of the invitation, is susceptible to a separate contract award.

(c) "Bid value" means the dollar amount computed by multiplying the line item quantity specified in the invitation for bids by the lowest unit price bid for the line item. Where a line item quantity is not specified in the invitation, as in the case of requirements type or indefinite quantity type contracts, the bid value of the line item is the dollar amount computed by multiplying the estimated line item quantity by the lowest unit price bid for the line item.

§ 1-1.1603 Reporting requirements.

§ 1-1.1603-1 Cases to be reported.

(a) A report shall be submitted by executive agencies to the Attorney General as provided in this § 1-1.1603 whenever (1) the total bid value of all line items covered by an invitation for bids issued under formal advertising procedures, or under small business restricted advertising procedures (see § 1-1.701-9), exceeds $10,000, and (2) identical bids have been received on at least one line item having a bid value of more than $10,000. However, a report will not be submitted where bids are received only from foreign sources in response to invitations for bids requiring delivery and performance outside the United States, its possessions, and the Commonwealth of Puerto Rico.

(b) Reports are required on reportable identical bids regardless of whether an award is made on the line item, the invitation is canceled, or some other disposition is made after bid opening. Line items on which identical bids are received are not reportable if the bid value of the line item is $10,000 or less. Likewise, line items on which no identical bids are received are not reportable.

[40 FR 44138, Sept. 25, 1975]

§ 1-1.1603-2 Preparation of reports

(a) Identical bid reports shall be made on U.S. Department of Justice

Form DJ-1500, Identical Bid Report for Procurement (for illustration of the form, see § 1-16.903-DJ1500). Form DJ-1500 is available in pads of 100 at General Services Administration supply depots (Federal Stock No. 7540-823-7870). Instructions for filling out the form are printed on the cover of each pad of forms.

(b) All bids on each line item on which reportable identical bids are received shall be shown on the report whether or not the identical bids were the low bids.

§ 1-1.1603-3 Submission of reports.

(a) Identical bid reports shall be sent to the Attorney General within 20 days following the disposition of all bids received in response to the invitation for bids, whether by the awarding of one or more contracts or other action.

(b) Two completed copies of each identical bid report, together with one copy of the invitation for bids and one copy of the completed abstract of bids, shall be sent to the Attorney General, Ref. AT-IBR, Washington, D.C. 20530. When the number of line items on an invitation exceeds 100, a copy of the abstract of bids need not be furnished. In such cases, however, the identical bid report shall be annotated to indicate the number of line items and the number of bidders on the invitation.

(c) A copy of each identical bid report shall be retained by the reporting activity.

§ 1-1.1604 Supplemental requests by Attorney General.

The Attorney General may, from time to time, request such supplemental information with respect to identical bid reports submitted to him as he may deem necessary for effective enforcement of antitrust laws.

§ 1-1.1605 Information to be obtained from bidders.

§ 1-1.1605-1 Invitation for bids provision.

A provision substantially as follows shall be inserted in all invitations for bids for the procurement of personal property or nonpersonal services (including construction) under either

formal advertising procedures or small business restricted advertising procedures where it is estimated that the total bid value of all line items covered by the invitation may exceed $10,000:

PARENT COMPANY AND EMPLOYER
IDENTIFICATION NUMBER

Each bidder shall furnish the following information by filling in the appropriate blocks:

(a) Is the bidder owned or controlled by a parent company as described below? Yes [ ] No [ ]

(For the purpose of this bid, a parent company is defined as one which either owns or controls the activities and basic business policies of the bidder. To own another company means the parent company must own at least a majority (more than 50 percent) of the voting rights in that company. To control another company, such ownership is not required; if another company is able to formulate, determine, or veto basic business policy decisions of the bidder, such other company is considered the parent company of the bidder. This control may be exercised through the use of dominant minority voting rights, use of proxy voting, contractual arrangements, or otherwise.)

(b) If the answer to (a) above is "Yes," bidder shall insert in the space below the name and main office address of the parent company.

(Name)(Address)

(c) Bidder shall insert in the applicable space below, if he has no parent company, his own employer's identification number E.I. No.) (Federal social security number used on employer's quarterly Federal tax return, U.S. Treasury Department Form 941), or, if he has a parent company, the E.I. No. of his parent company.

Bidder's E.I. No.

Parent Company's E.I. No.

§1-1.1605-2 Failure to provide information.

(a) If a bid does not contain the information called for by the invitation for bids provision in § 1-1.1605-1 and an identical bid report is required under § 1-1.1603-1, one inquiry shall be made of the bidder in an effort to obtain the information. If the information is not available after inquiry, the identical bid report shall be annotated so to indicate.

(b) Failure to provide information concerning employer identification number or parent company relation

ship shall not be considered a basis for rejection of bids.

Subpart 1-1.17 [Reserved]

Subpart 1-1.18-Postaward Orientation of Contractors

SOURCE: Subpart 1-1.18 appears at 31 FR 12437, Sept. 20, 1966, unless otherwise noted.

§ 1-1.1800 Scope of subpart.

The subpart prescribes policies and procedures regarding the postaward orientation of contractors performing contracts and subcontracts for supplies and services (except construction).

§ 1-1.1801 [Reserved]

§ 1-1.1802 Policy.

(a) When it is determined after contract award that the contractor does not or may not have a clear understanding of the scope of the contract, of its technical requirements, or of the rights and obligations of the parties, postaward orientation conferences may be employed (see § 1-1.1803) in order to clarify these matters. Where less complex contracts are involved, simpler means may be used, such as a letter to the contractor (see § 11.1806). Postaward orientation of subcontractors also may be employed (see § 1-1.1804).

(b) However, a postaward orientation conference may not be used in substitution for affirmative preaward determinations as to a bidder's responsibility, e.g., as to his willingness and ability to comply with the equal employment opportunity requirements.

[31 FR 12437, Sept. 20, 1966, as amended at 36 FR 17421, Aug. 31, 1971]

§ 1-1.1803 Postaward orientation confer

ences.

§ 1-1.1803-1 Factors.

In selecting contracts for postaward orientation, the selection should include consideration of the following factors: