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be considered and, wherever practica. this mandatory use requirement are as ble, used by any agency having need follows: therefor, consistent with the agency's (a) The exceptions in § 1-1.305 relatprocedures establishing priority for ing to the mandatory use of Federal use of such specifications.

Specifications are for application to

the use of Federal Standards. § 1-1.306 Standards.'

(b) In a specific case or class of cases "Standards," as used in this $1- an executive agency may be granted 1.306, are descriptions which establish an exception by the General Services engineering or technical limitations Administration on submission of an and applications for materials, proc adequate justification therefor. esses, methods, designs, or drafting room and other engineering practices,

§ 1-1.307 Purchase descriptions. or any related criteria deemed essen

$ 1-1.307-1 Applicability. tial to achieve the highest practical degree of uniformity in materials or

(a) Purchase descriptions may be products, or interchangeability of used in the procurement of supplies or parts used in those products; and

services (excluding construction) only which may be used in specifications,

when the use of formal (including ininvitations for bids, proposals, and

terim and other temporary) Governcontracts. The identification of the ment specifications and standards to categories and intended use of such describe such supplies or services is standards are as follows:

not required under applicable regula(a) Federal Standards. A standard

tions. (See 88 1-1.305 and 1-1.306). promulgated by the General Services

However, where the use of a formal Administration, mandatory for use by

specification or standard is required, all executive agencies, including the

use of supplementary descriptive inDepartment of Defense.

formation which is consistent with the (b) Interim Federal Standard. A

specification or standard is permissistandard intended for final processing

ble.

(b) Purchase descriptions used in as a new or revised Federal Standard, issued in interim form for optional use

competitive procurement shall not by executive agencies.

specify a product having features (c) Military (MIL) Standard. A

which are peculiar to the product of standard issued by the Department of

one manufacturer, producer, or disDefense used solely or predominantly

tributor, and thereby preclude considby and mandatory on military activi

eration of a product of another compaties. This definition includes both

ny, unless it has been determined in fully coordinated and limited coordi

writing by the user that those particunation military standards.

lar features are essential to the Gov(d) Departmental Standards. A

ernment's requirements, and that simstandard developed and prepared by,

ilar products of other companies lackand of interest primarily to, a particu

ing those features would not meet the lar executive civilian

minimum requirements for the item.

agency, but which may be used in procurement by

Purchase descriptions shall not inother agencies.

clude either minimum or maximum re

strictive dimensions, weights, materi(29 FR 10104, July 24, 1964, as amended at als, or other salient characteristics 30 FR 16110, Dec. 28, 1965)

which would tend to eliminate compe

tition by other products which are $ 1-1.306-1 Mandatory use and applica

only marginally outside the restriction of Federal Standards.

tions, unless such restrictions are deFederal Standards shall be used by termined by the user in writing to be all executive agencies, including the essential to the Government's requireDepartment of Defense. Exceptions to ments.

(c) Purchase descriptions, as well as Other instructions concerning standards other forms of specifications, must acare contained in the Federal Property Man- curately reflect the needs of the Govagement Regulations, Part 101-29.

ernment.

(29 FR 10104, July 24, 1964, as amended at name product” means a commercial 40 FR 2810, Jan. 16, 1975)

product described by brand name and

make or model number or other ap. § 1-1.307-2 General requirements.

propriate nomenclature by which that Except as otherwise provided in 881- product is offered for sale to the 1.307-3 and 1-1.307-4, purchase de- public by the particular manufacturer, scriptions shall clearly and accurately producer, or distributor. All known acdescribe the salient technical require- ceptable brand name products should ments or desired performance charac be listed in the solicitation. When a teristics of the supplies or services to "brand name or equal" purchase debe procured without including restric scription is used in connection with a tions which do not significantly affect primary item, or a major component, the technical requirements or per prospective contractors must be given formance characteristics and, when the opportunity to offer products appropriate, shall describe the testing other than those specifically referprocedures which will be used in deter- enced by brand name if those other mining whether such requirements or products will meet the needs of the characteristics are met. When neces Government in essentially the same sary, preservation, packaging, packing, manner as those referenced. If modifiand marking requirements shall be in cations to standard products of proscluded. Purchase descriptions may in pective contractors to meet the purclude references to formal Govern chase description requirements are anment specifications and standards ticipated, a minimum of 30 calendar which are to form a portion of the days shall be allowed between issuance purchase description.

of the solicitation and opening of bids

or receipt of proposals, provided that (40 FR 2810, Jan. 16, 1975)

periods of less than 30 calendar days 8 1-1.307-3 Commercial, and State and

may be set in cases of urgency or when

the contracting officer has reason to local government specifications and standards.

believe that bidders can bid effectively

on the basis of a shorter period. Purchase descriptions may include

(b) “Brand name or equal" purchase or consist of references to specifica- descriptions should set forth those sations and standards issued, promulgat- lient physical functional or other ed, or adopted by technical societies or

les or characteristics of the referenced prodassociations, or State and local govern

ucts which are essential to the needs ments, if those specifications and

of the Government, contain the folstandards (a) are widely recognized

lowing information to the extent avail. and used in commercial practice, (b) commercial practice, (

b able, and include such other informaconform to the requirements of $ 1

of 81 tion as is necessary to describe the 1.307-2, (c) are readily available to

item required: suppliers of the supplies or services to

(1) Complete common generic identibe procured, and (d) it has been deter

fication of the item required. mined, in writing, by the user that any

(2) Applicable model, make, or catafeatures peculiar to the product of one

log number for each brand name prodmanufacturer, producer, or distributor, or any restrictions are essential to

uct referenced, and identity of the the Government's requirements.

commercial catalog in which it ap

pears. (40 FR 2810, Jan. 16, 1975)

(3) Name of manufacturer, producer,

or distributor of each brand name $ 1-1.307-4 Brand name products or

product referenced (and address if equal.

company is not well known). (a) Purchase descriptions which (c) When necessary to describe aderefer to one or more brand name prod. quately the item required, an applicaucts followed by the words “or equal” ble commercial catalog description, or may be used only in accordance with pertinent extracts therefrom, may be this $ 1-1.307-4 and 88 1-1.307-5 used if such description is identified in through 1-1.307-9. The term "brand the invitation for bids or request for

proposals as being that of the particular named manufacturer, producer, or distributor.

(29 FR 10104, July 24, 1964, as amended at 36 FR 288, Jan. 8, 1971; 40 FR 2810, Jan. 16, 1975)

$ 1-1.307-5 Limitations on use of "brand

name or equal” purchase descriptions. “Brand name or equal" purchase descriptions may be used only under the circumstances in (a) or (b) of this $ 11.307-5:

(a) When a suitable formal Government specification or standard or industry standardization document approved for agency use is not available, and a purchase description of the type referred to in § 1-1.307-3 is inadequate or unavailable, and a purchase description meeting the general requirements of 81-1.307-2 cannot be prepared because

(1) Construction or composition of the product to be procured is too technically involved;

(2) Public exigency or military necessity precludes timely development; or

(3) It is impracticable or uneconomi. cal to prepare a purchase description.

(b) When purchasing items for authorized resale, except military clothing.

(c) The product to be referenced must, in any event, be regularly of fered for sale to the public.

(d) When a "brand name or equal" description is used, a notation shall be made in the case file as to the reasons therefor.

BRAND NAME OR EQUAL (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 (including products of the brand name manufacturer other than the one described by brand name) will be considered for award if such products are clearly identified in the bids and are determined by the Government to meet fully the salient characteristics requirements listed in the invitation.

(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 salient characteristics requirement 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.

(3) Modifications proposed after bid opening to make a product conform to a brand

$ 1-1.307-6 Invitation for bids, “brand

name or equal" descriptions. (a) Except as provided in (b) of this § 1-1.307-6 when a "brand name or equal" purchase description is included in an invitation for bids:

(1) The following shall be inserted after each item so described in the invitation, for completion by the bidder

Bidding on:
Manufacturer's Name..........
Brand..
No......

(2) In addition, the following clause shall be included in the invitation:

30-103 0–79—3

cure

name product referenced in the Invitation fication of, the specific products which for Bids will not be considered.

the contractor is to furnish. Such (b) Where a component part of an

identification shall include any brand end item is described in the invitation

name and/or make or model number, for bids by a "brand name or equal"

descriptive material, and any modificapurchase description and the contract

tions of brand name products specified ing officer determines that application

in the bid. Included in this requireof the clause in (a)(2) of this § 1-1.307

ment are those instances where (1) the 6 to such component part would be im

description of the end item contains practicable, the requirements of (a)(1)

“brand name or equal" purchase deand (2) of this : 1-1.307-6 shall not scriptions or component parts or of acapply with respect to such component

cessories related to the end item and part. In such cases, if the clause is in

(2) the clause in § 1-1.307-6(a)(2) was cluded in the invitation for bids for

applicable to such component parts or other reasons, there also shall be in accessories (see § 1-1.307-6(b)). cluded in the invitation a statement (29 FR 10104, July 24, 1964, as amended at identifying either the component 38 FR 24211, Sept. 6. 1973) parts (described by “brand name or equal" descriptions) to which the 1-1.307-8 Procedure for negotiated proclause applies or those to which it does curements and small purchases. not apply. This paragraph (b) also ap (a) The policies and procedures preplies to accessories related to an end

scribed in $$ 1-1.307-6 and 1-1.307-7 item where a “brand name or equal"

for formally advertised procurements purchase description of the accessories

shall be generally applicable to negoti. is a part of the description of an end ated procurements. item.

(b) The clause set forth in § 1-1.307(c) When an invitation for bids con 6(a)(2) may be adapted for use in netains “brand name or equal" purchase

gotiated procurements. If use of the descriptions, bidders who offer brand clause is not practicable (as may be name products referenced in such de

the case in exigency purchases), supscriptions shall not be required to fur

pliers shall be suitably informed that nish bid samples of the referenced proposals offering products different brand name products; however, invita

from the products referenced by brand tions for bids may require the submis name will be considered if the consion of bid samples in the case of bid. tracting officer determines that the ders offering "or equal" products.

offered products meet fully the salient (29 FR 10104, July 24, 1964, as amended at

characteristics requirements of the so38 FR 24210, Sept. 6, 1973)

licitation.

(c) In small purchases within open$ 1-1.307-7 Bid evaluation and award, market limitations, such policies and

"brand name or equal” descriptions. procedures shall be applicable to the (a) Bids offering products which extent practicab differ from brand name products ref. [29 FR 10104, July 24, 1964, as amended at erenced in a “brand name or equal" 38 FR 24211, Sept. 6, 1973) purchase description shall be considered for award where the contracting

§ 1-1.307-9 Inspection and acceptance. officer determines in accordance with Inspection and acceptance of deliv. the terms of the clause in § 1-1.307 eries shall be made on the basis of the 6(a)(2) that the offered products meet item described in the notice of award fully the salient characteristics requirements listed in the invitation. Bids shall not be rejected because of $$ 1-1.308—1-1.310 (Reserved) minor differences in design, construction, or features which do not affect § 1-1.311 Priorities, allocations, and allotthe suitability of the products for their intended use.

In the interest of maintaining a (b) Award documents shall identify, minimum priorities and allocations or incorporate by reference an identi- system as a mobilization preparedness

measure, agencies shall require contractors to use ratings and allotment authority to support defense needs to the extent required by regulations of the Business and Defense Services Administration, Department of Commerce.

§ 1-1.312 [Reserved)
8 1-1.313 Records of contract actions.

Each contract file should contain documentation of actions taken with respect to each contract, including final disposition. To the extent that retained copies of documents do not represent all actions taken, suitable memoranda or a summary statement of such undocumented actions should be prepared promptly and be retained in the contract file.

§ 1-1.314 Solicitations for informational

or planning purposes. It is the general policy of the Gov. ernment to solicit bids, proposals, or quotations only where there is a definite intention to award a contract. However, in some cases requests for informational or planning purposes may be justified. In such cases the request shall clearly state its purpose, explaining that the Government does not intend to award a contract on the basis of the request, or otherwise pay for the information solicited; but such statement does not prohibit the allowance, in accordance with § 1-15.205-3, of the cost of preparing such quotations.

81-1.315-2 Policy.

(a) Liquidated damages provisions may be used only where both (1) the time of delivery or performance is such an important factor in the award of the contract that the Government may reasonably expect to suffer damage if the delivery or performance is delinquent, and (2) the extent or amount of such damage would be difficult or impossible of ascertainment or proof.

(b) In making decisions as to whether liquidated damages provisions are to be used, consideration should be given to their probable effect on such matters as pricing, competition, and the costs and difficulties of contract administration, as well as the availability of provision elsewhere in the contract for recovery of excess costs in termination cases.

(c) The rate of liquidated damages stipulated must be reasonable in relation to anticipated damages, considered on a case-by-case basis, since liguidated damages fixed without any reasonable reference to probable damages may be held to be not compensation for anticipated damages caused by delay, but a penalty and therefore unenforceable.

(d) Where a liquidated damages provision is included in a contract and a basis for termination for default exists, appropriate action should be taken expeditiously by the Government to obtain performance by the contractor or to exercise its right to terminate as provided in the contract. If delivery or performance is desired after termination for default, efforts must be made to obtain either delivery or performance elsewhere within a reasonable time. Efficient administration of contracts containing liquidated damages provisions is imperative to prevent undue loss to defaulting contractors and to protect the interests of the Government.

(e) Whenever any contract includes a provision for liquidated damages for delay, the Comptroller General, on the recommendation of the head of the agency concerned, is authorized and empowered, by law, to remit the whole or any part of such damages as

8 1-1.315 Use of liquidated damages provi.

sions in procurement contracts.

§ 1-1.315-1 General.

This 81-1.315 prescribes (a) policy which shall govern executive agencies in the use of liquidated damages provisions in contracts for supplies and services, including construction, entered into by formal advertising or by negotiation, and (b) a provision which shall be inserted in contracts for supplies and services, other than construction, when liquidated damages are stipulated.

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