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$1-1.316 Time of delivery or performance. § 1-1.316-1 Scope and applicability.

This § 1-1.316 prescribes policy and procedure regarding requirements as to time for delivery or performance in contracting for personal property or nonpersonal services. This section does not, however, apply to contracts for construction.

in his discretion may be just and equitable. $ 1-1.315-3 Contract provisions.

(a) Contracts for supplies or services. When a liquidated damages provision is to be used in a contract which is for supplies or services and which includes Standard Form 32, General Provisions (Supply Contract), the following provision shall be inserted in the invitation for bids and an appropriate rate(s) of liquidated damages (determined pursuant to 8 1-1.315-2) shall be stipulated:

LIQUIDATED DAMAGES Article 11(f) of Standard Form 32, Gener. al Provisions (Supply Contract), is redesignated as Article 11(g) and the following is inserted as Article 11(f):

(f)(i) In the event the Government exer. cises its right of termination as provided in paragraph (a) above, the Contractor shall be liable to the Government for excess costs as provided in paragraph (b) above and, in addition, for liquidated damages, in the amount set forth elsewhere in this contract. as fixed, agreed, and liquidated damages for each calendar day of delay, until such time as the Government may reasonably obtain delivery or performance of similar supplies or services.

(ii) If the contract is not so terminated, notwithstanding delay as provided in paragraph (a) above, the Contractor shall con tinue performance and be liable to the Gov. ernment for such liquidated damages for each calendar day of delay until the supplies are delivered or services performed.

(iii) The Contractor shall not be liable for liquidated damages for delays due to causes which would relieve him from liability for excess costs as provided in paragraph (c) of this clause.

(b) Contracts for construction. Liqui. dated damages provisions for construction contracts are contained in the Termination for Default-Damages for Delay-Time Extensions clauses of both Standard Form 19, Invitation, Bid, and Award (Construction, Alteration or Repair), and Standard Form 23A, General Provisions (Construction Contract). To make such provisions opera. tive, an appropriate rate(s) of liquidat ed damages (determined pursuant to $ 1-1.315-2) must be stipulated in the invitation for bids.

$ 1-1.316-2 General.

(a) The time of delivery or of performance is an important element of a contract and must be clearly set forth in invitations for bids and requests for proposals. Time schedules for delivery or performance shall be designed to meet the requirements of the particular procurement, all relevant factors considered (see § 1-1.316-3), and must be realistic. Schedules which are unreasonably tight or difficult of attainment tend to restrict competition, are inconsistent with small business poli. cies, and may result in higher contract prices. Therefore, before issuing an invitation for bids or request for proposals, the contracting officer shall question any delivery or performance schedule which appears unrealistic and, if necessary, initiate action to make appropriate adjustments.

(b) Where timely delivery or performance is unusually important to the Government, a liquidated damages provision may be used as provided for in § 1-1.315.

(c) Invitations for bids and requests for proposals shall, when appropriate, inform bidders or offerors of the basis on which their bids or proposals will be evaluated with respect to time of delivery or performance.

§ 1-1.316-3 Factors to be considered.

Factors to be considered in establishing delivery or performance schedules may include one or more of the following:

(a) Urgency of need for the property or services.

(b) Production time due to quantity, complexity of design, etc.

(c) Market conditions.
(d) Transportation time.
(e) Industry practices.

(f) Capabilities of small business concerns.

(g) Time for obtaining and evaluating bids or offers, and for awarding contracts.

(h) Time for contractors to comply with any conditions precedent to performance.

(i) Time for the Government to perform its obligations under the contract (e.g., furnishing of Government property to the contractor, approval or preproduction samples, and inspection).

§ 1-1.316-4 Terms.

(a) Delivery schedules may be expressed in terms of

(1) Specific calendar dates (e.g., on or before July 1, 1960);

(2) Specified periods from date of contract (i.e., from date of award or acceptance by the Government, or from date shown on contract document as effective date of contract); or

(3) Specified periods from date of receipt by contractor of notice of award or acceptance by the Government (including notice by receipt of contract document executed by the Govern. ment). The full period which the Government holds out as being available for contract performance should not be curtailed to the prejudice of the contractor by delay in giving notice of award. Accordingly, one of the provi. sions in (b) or (c) of this § 1-1.316-4 shall be used in advertised precure. ments and may be suitably modified and used as appropriate in negotiated procurements.

(b) Where the delivery schedule is expressed in terms of specific calendar dates (see (a)(1) of this § 1-1.316-4), invitations for bids shall include one of the following provisions:

(1) The foregoing delivery requirements are based on the assumption that the Government will make award by (procuring activity insert calendar date). Each delivery date in the delivery schedule set forth herein will be extended by the number of calendar days after the above date that the contract is in fact awarded. Attention is directed to paragraph 8(d) of the Terms and Conditions of the Invitation for Bids, which provides that a written award mailed or otherwise furnished to the successful bidder results in a binding contract. Therefore, in computing the available time for perform

ance, the bidder should take into consideration the time required for notice of award to arrive through the ordinary mails.

(2) The foregoing delivery requirements are based on the assumption that the successful bidder will receive that notice of award by (procuring activity insert calendar date). The Government will extend each delivery date in the delivery schedule set forth herein by the number of calendar days after the above date that the contractor receives notice of award, if the contractor promptly acknowledges such receipt.

(c) Where the delivery schedule is based on the date of contract (see (a)(2) of this g 1-1.316-4), the invita. tions for bids shall include the following provision:

Attention is directed to paragraph 8(d) of the Terms and Conditions of the Invitation for Bids, which provides that a written award mailed or otherwise furnished to the successful bidder results in a binding contract. Any award hereunder, or a prelimi. nary notice thereof, will be mailed or otherwise furnished to the bidder the day the award is dated. Therefore, in computing the time available for performance, the bidder should take into consideration the time required for the notice of award to arrive through the ordinary mails. However, a bid offering delivery based on date of receipt by the contractor of the contract or notice of award (rather than contract date) will be evaluated by adding the maximum number of days normally required for delivery of the award through the ordinary mails. If, as SO computed, the delivery date offered is later than the delivery date required in the invitation, the bid will be considered nonre. sponsive and rejected.

(d) Where the delivery schedule is based on the date of the contract (see (a) (2) and (c) of this § 1-1.316-4), the contract, notice of award, acceptance of proposal, or other contract document executed by the Government shall be mailed or otherwise furnished the contractor on the date shown thereon.

(e) Where the delivery schedule is based on date of receipt by the contractor of notice of award (see (a)(3) of this § 1-1.316-4), or where it is expressed in terms of specific calendar dates on the assumption that notice of award will be received by a specified date (see (b)(2) of this g 1-1.316-4), the notice of award, acceptance of proposal, or other contract document executed by the Government shall be sent by certified mail, return receipt request. ed, or by any other appropriate method which will provide evidence of the date of receipt.

(f) When the required delivery schedule in the invitation for bids is based on date of the contract (see (a)(2) of this § 1-1.316-4), a bid which offers delivery based on date of receipt by the contractor of the contract or notice of award (see (a)(3) of this 811.316-4)—

(1) Shall be evaluated by adding the maximum number of days normally required for delivery of the notice of award through the ordinary mails; and

(2) If the delivery date offered by the bid (computed in accordance with (f)(1) of this g1-1.316-4) is later than the delivery date required in the invi. tation for bids, the bid shall be considered nonresponsive and rejected; but

(3) If award is made under (1)(1) of this $ 1-1.316-4, under the terms of the contract the delivery date will be computed on the basis of the number of days after actual receipt by the contractor of the notice of award as specified in the bid.

of a quantity under such terms or cond tions that delivery will not clearly fal within the applicable delivery period spec fied above will be considered nonresponsiv and will be rejected. Where a bidder offer an earlier delivery schedule than that calle for above, the Government reserves thi right to award either in accordance with thi required schedule or in accordance with the schedule offered by the bidder. If the bidder offers no other delivery schedule, the delir ery schedule stated above shall apply. Bidder's Proposed Delivery Schedule

(To Be Completed by Bidder) Item

Time No.

Quantity

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*Contracting officer shall insert the appropriate one of the following phrases, in both of the indicat. ed spaces:

(1) "On (on or before) the date(s) specified below."

(2) "Within the number of days stated below after the date of contracts."

(3) "Within the number of days stated below after the date of receipt of a written notice of award."

(4) “Within the periods specified below." (NOTE: When this phrase is inserted, the wording “during the month(s) of ----" or "not sooner than - - and not later than -_- " should be used to specify the periods.)

(c) The following clause may be used where delivery by a certain time is de sired although not essential, but delivery by a specified later time is necessary to meet the Government's requirements:

§ 1-1.316-5 Time of delivery clauses.

(a) Examples of time of delivery clauses for invitations for bids are set forth below. They may be modified, or other clauses may be used, to state particular delivery requirements or any special procedures to be used in the evaluation, rejection, or award process as regards time of delivery. These clauses also may be suitably modified for use in negotiated procurements where appropriate.

(b) The following clause may be used where delivery by a particular time is necessary to meet the Government's requirements:

TIME OF DELIVERY Delivery is required to be made in accordance with the following schedule:

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Bids offering delivery of each quantity within the applicable delivery period specified above will be evaluated equally as regards time of delivery. Bids offering delivery

.............

Bids offering delivery of a quantity under such terms or conditions that delivery will not clearly fall within the applicable required delivery period specified above will be considered nonresponsive and will be rejected.

If the bidder does not propose a different delivery schedule, the Government's desired delivery schedule shall apply.

Bidder's Proposed Delivery Schedule

(To Be Completed by Bidder) Item

Time No.

Quantity

•Contracting officer shall insert the appropriate one of the following phrases, in each of the three indicated spaces:

(1) "On (on or before) the date(s) specified below."

(2) "Within the number of days stated below alter date of contract."

(3) "Within the number of days stated below after the date of receipt of a written notice of award."

(4) “Within the periods specified below." (NOTE: When this phrase is inserted, the wording "during the month(s) of ----" or "not sooner than ---- and not later than - -" should be used to specify the periods.)

§ 1-1.317 Noncollusive bids and proposals.

(a) In order to promote full and free competition for Government contracts, the certification prescribed by this section shall be included in all (1) invitations for bids and (2) requests for proposals or quotations. Exceptions to this requirement include the following: Small purchases in accordance with Subpart 1-3.6, requests for technical proposals in connection with two-step formal advertising involving firm fixed-price contracts and fixedprice contracts with escalation, and contracts for utility services where rates are set by law or regulation

(2) Unless otherwise required by law, the prices which have been quoted in this bid or proposal have not been knowingly disclosed by the bidder or offeror and will not knowingly be disclosed by the bidder or offeror prior to opening, in the case of a bid, or prior to award, in the case of a proposal, directly or indirectly to any other bidder or offeror or to any competitor; and

(3) No attempt has been made or will be made by the bidder or offeror to induce any other person or firm to submit or not to submit a bid or proposal for the purpose of restricting competition.

(b) Each person signing this bid or proposal certifies that:

(1) He is the person in the bidder's or of. feror's organization responsible within that organization for the decision as to the prices being bid or offered herein and that he has not participated, and will not participate, in any action contrary to (a)(1) through (a)(3) above; or

(2Xi) He is not the person in the bidder's or offeror's organization responsible within that organization for the decision as to the prices being bid or offered herein but that he has been authorized in writing to act as agent for the persons responsible for such decision in certifying that such persons have not participated, and will not participate, in any action contrary to (a)(1) through (a)(3) above, and as their agent does hereby so certify; and (ii) he has not participated, and will not participate, in any action contrary to (a)(1) through (a)(3) above.

(c) This certification is not applicable to a foreign bidder or offeror submitting a bid or proposal for a contract which requires performance or delivery outside the United States, its possessions, and Puerto Rico.

(d) A bid or proposal will not be considered for award where (a)(1), (a)(3), or (b) above has been deleted or modified. Where (a)(2) above has been deleted or modified, the bid or proposal will not be considered for award unless the bidder or offeror furnishes with the bid or proposal a signed statement which sets forth in detail the circumstances of the disclosure and the head of the agency, or his designee, determines that such disclosure was not made for the purpose of restricting competition.

(b) The fact that a firm (1) has published pricelists, rates, or tariffs covering items being procured by the Government, (2) has informed prospective customers of proposed or pending publication of new or revised pricelists for such items, or (3) has sold the same items to commercial customers at the same prices being offered the Government does not constitute, without

CERTIFICATE OF INDEPENDENT PRICE

DETERMINATION (a) By submission of this bid or proposal, each bidder or offeror certifies, and in the case of a joint bid or proposal each party thereto certifies as to its own organization, that in connection with this procurement:

(1) The prices in this bid or proposal have been arrived at independently, without consultation, communication, or agreement, for the purpose of restricting competition, as to any matter relating to such prices with any other bidder or offeror or with any competi. tor;

more, a disclosure within the meaning of paragraph (a)(2) of the Certificate.

(c) It is not required that a separate written authorization be given to the signer of the bid or proposal for each procurement involved where the signer makes the certification provided in paragraph (b)(2) of the Certif. icate: Provided, That with respect to any blanket authorization given, (1) the procurement to which the Certificate applies is clearly within the scope of such authorization, and (2) the person giving such authorization is the person responsible within the bidder's or offeror's organization for the decision as to the prices being bid or offered at the time the Certificate is made in a particular procurement.

(d) After the execution of an initial certificate and the award of a contract in connection therewith, the contractor need not submit additional certifi. cates in connection with proposals submitted on "work orders" or similar ordering instruments issued pursuant to the terms of that contract, where the government's requirements cannot be met from another source.

(e) The authority to make the determination described in paragraph (d) of the above certification shall not be delegated to an official below the level of the head of a procuring activity of the agency.

(f) Where a certification is suspected of being false or there is indication of collusion, the matter shall be processed in accordance with Subpart 1-1.9 and appropriate agency procedures. For rejection of bids which are suspected of being collusive and for the negotiation of procurements subsequent to such rejection, see 88 1-2.4041(b)(6) and 1-3.214. (29 FR 10104, July 24, 1964, as amended at 30 FR 9589, July 31, 1965; 40 FR 60020, Dec. 31, 1975)

ly as follows shall be included in the decision:

This decision is made in accordance with the disputes clause and shall be final and conclusive as provided therein, unless, within 30 days from the date of receipt of this decision, a written notice of appeal (in triplicate) addressed to the (Title of the head of the agency) is mailed or otherwise furnished to the Contracting Officer. The notice of appeal, which is to be signed by you as the contractor or by an attorney acting on your behalf, and which may be in letter form, should indicate that an appeal is intended, should refer to this decision and should identify the contract by number. The notice of appeal may include a statement of the reasons why the decision is considered to be erroneous.

(b) A copy of each contracting offi. cer's decision shall be furnished to the contractor by certified mail, return receipt requested, or by any other method which provides evidence of the date of receipt of the decision by the contractor. (33 FR 3064, Feb. 16, 1968)

8 1-1.318-2 Relationship to the Equal Op

portunity clause. See § 1-12.805-9 regarding disputed matters related to the equal opportunity program. [33 FR 3064, Feb. 16, 1968) 8 1-1.319 Procurement of items using

jewel bearings. (a) General. To maintain a jewel bearing production facility in the United States as a part of the industrial mobilization base, the Government owns and, through a contractor, operates the William Langer Jewel Bearing Plant at Rolla, N. Dak. The Director, Office of Emergency Preparedness, has requested that agencies use this source in order to promote the use of this plant as an established domestic source of jewel bearings.

(b) Definitions. As used in this subpart the following terms have the meanings set forth in this paragraph:

(1) "Jewel bearing" means a piece of synthetic sapphire or ruby of any shape, except a phonograph needle, which has one or more polished surfaces and which is suitable for use in an instrument, mechanism, subassem

§ 1-1.318 Disputes clause. (33 FR 3064, Feb. 16, 1968)

§ 1-1.318-1 Contracting officer's decision

under a disputes clause. (a) When a final decision of the contracting officer concerns a dispute that is or may be subject to the disputes clause, a paragraph substantial

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