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PART 2

PROCUREMENT BY FORMAL ADVERTISING

2.000 Scope of Part. This Part sets forth the (i) basic requirements for procurement of supplies and services (including construction) by formal advertising, (ii) information to be contained in solicitations of bids, (iii) methods of soliciting bids, (iv) policies with respect to the submission of bids, and (v) requirements with respect to the opening and evaluation of bids and the awarding of contracts.

Subpart 1–Use of Formal Advertising 2.101 Meaning of Formal Advertising. Formal advertising means procurement by competitive bids and awards, as prescribed in this Part, and involves the following basic steps:

(i) Preparation of the invitation for bids, by 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, provided prospec

tive bidders for the purpose of bidding; (ii) Publicizing the invitation for bids, through distribution to prospec

tive 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; (iii) Submission of bids by prospective contractors; and (iv) Awarding the contract, after bids are publicly opened, to that

responsible bidder whose bid, conforming to the invitation for bids, will be most advantageous to the Government, price and other factors considered (or rejecting all bids).

2.102 Policy.

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2.102-1 General.

(a) Chapter 137 of Title 10 of the United States Code (see 10 U.S.C. 2304(a)), which is applicable to procurements by NASA, provides that purchases of and contracts for supplies or services shall be made by formal advertising in all cases in which the use of such method is feasible and practicable under the existing conditions and circumstances. It further provides that, if the use of formal advertising is not feasible and practicable, negotiation of contracts is authorized under certain circumstances enumerated therein. The circumstances are set forth in Part 3, Subpart 2, of this Regulation. 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 in accordance with 2.205.

(b) Chapter 137 of Title 10 of the United States Code (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

PROCUREMENT BY FORMAL ADVERTISING

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 before agreeing to a price adjustment of a formally advertised contract.

2.102-2 Classified Procurements. Formal advertising shall be used for classified procurements if, after due consideration of security requirements, it is concluded that such requirements will not be violated.

2.103 General Requirements for Formally Advertised Contracts. No contract shall be made as a result of formal advertising unless:

(i) bids have been solicited as required by Subpart 2 of this Part; (ii) bids have been submitted as required by Subpart 3 of this Part; (iii) determination has been made as to the responsible bidder whose

bid is responsive to the invitation for bids and is most advantageous to the Government, price and other factors considered,

and award is made as prescribed in Subpart 4 of this Part; (iv) such clearances and approvals as are required by this Regulation

have been obtained. 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, subject to the provisions of 2.104–3 and 2.407-4, where such flexibility is necessary and feasible.

2.104–2 Firm Fixed-Price Contracts. See 3.404–2.

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, in order to protect the interest of both the Government and contractor. In addition, where the contracting officer, on the basis of his knowledge of the market or previous advertisements for like items, expects that a requirement for firm fixed-price bids will unnecessarily restrict competition or unreasonably increase bid prices, invitation for bids may include an approved escalation clause. 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.

2.104-4 Indefinite Delivery-type Contracts. See 3.409. 2.105 Solicitation for Informational or Planning Purposes. See 1.309.

2.150 Procurement Request. A procurement request (NASA Form 404 or similar form) will be prepared and processed in accordance with the provisions of 1.356.

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Subpart 2-Solicitation of Bids

2.201 Preparation of Invitation for Bids. Forms used in inviting bids are prescribed in Part 16, Subparts 1 and 4. Invitation for bids shall contain the applicable information described in 2.201–1 and 2.201–2 below, and any other information required for a particular procurement. Pen and ink entries, deletions, or alterations shall not be made in an invitation for bids after it has been prepared for distribution. If a change is necessary after reproduction of the invitation for bids, the Standard Form 30 (Amendment of Solicitation/ Modification of Contract) shall be used (see 16.101 and 16.103).

2.201–1 Supply and Service Contracts.

(a) Supply and Service Contracts, Including Construction. 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 installation.
(3) Date of issuance.

(4) Date, hour, and place of opening. Prevailing local time shall be used, and appropriate identification of the local time system under which the installation is operating shall be included, e.g., 11:30 a.m., Eastern Standard Time. (See 2.202-1 concerning bidding time.) The exact location of the bid depository, 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)). Such description shall comply with Part 1, Subpart 12, relating to specifications.

(8) The time of delivery or performance (see 1.305).
(9) Permission, if any, to submit telegraphic bids (see 2.202–2).

(10) Permission, if any, to submit alternate bids, including alternate materials or design and the basis upon which award will be made in such case.

(11) The “Patent Royalties" clause set forth in 9.102(d)(1).

(12) Bid guarantee, performance bond, and payment bond requirements, if any (see Part 10, Subpart 1, and 16.805). If a bid bond or other form of bid guarantee is required, the solicitation shall include the provisions required by 10.102-4.

(13) Any offer by the Government to provide Government production and research property for the performance of the contract, and any special provisions relating thereto (see Part 13, Subpart 3).

(14) Description of the procedures to be followed in obtaining permission to use Government production and research property and in eliminating competitive advantage from the rent-free use thereof (see Part 13, Subparts 4 and 5).

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2.201-1

NASA PROCUREMENT REGULATION

PROCUREMENT BY FORMAL ADVERTISING

(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:

BIDS ACCEPTANCE PERIOD (JULY 1965) Bids offering less than days for acceptance by the Government from the date set

for opening of bids will be considered nonresponsive and will be rejected. In construction contracts, a 30-day bid acceptance period is normal, but may be less, and in unusual circumstances a period of 60 days may be specified.

(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, patent licenses, liquidated damages, "Buy American Act,” etc.

(18) Any additional contract clauses, provisions or conditions required by law or this Regulation.

(19) Any applicable wage determinations of the Secretary of Labor (in the case of procurements of supplies which also involve the performance of construction, alteration or repair work, see 12.402; in the case of service contracts, see Part 12, Subpart 11).

(20) A statement of the exact basis upon which bids will be evaluated and award made, to include any Government costs or expenditures (other than bid prices) to be added or deducted, or any provision for escalation as factors for evaluation.

(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. (JULY 1968)

(22) Where Standard Form 33 (Solicitation, Offer, and Award) (July 1966 edition) is not used and where not contained elsewhere in the invitation, a provision as follows:

ORDER OF PRECEDENCE (JULY 1968)
In the event of an inconsistency between provisions of this Invitation for Bids, the incon-
sistency shall be resolved by giving precedence in the lowing order: (a) the Schedule;
(b) Bidding Instructions, Terms and Conditions of the Invitation for Bids; (c) General
Provisions; (d) other provisions of the contract, whether incorporated by reference or
otherwise; and (e) the Specifications.

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SOLICITATION OF BIDS

(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 included in the Schedule or other appropriate place in the invitation for bids:

AFFILIATED BIDDERS (JULY 1968)

(a) Business concerns are affiliates of each other when either directly or indirectly (i) one concern controls or has the power to control the other, or (ii) a third party controls or has the power to control both. (b) Each bidder shall submit with his bid an affidavit containing information as follows:

(i) whether the bidder has any affiliates;
(ii) the names and addresses of all affiliates of the bidder; and
(ii) 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. 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 incorportated by reference (see 1.1203).

(25) Where Standard Form 33 (Solicitation, Offer, and Award) (July 1966 edition) is not used, a requirement for inclusion of "county" as part of bidder's address will be inserted.

(26) A provision covering the required source for jeweled bearings (see 1.315).

(27) [Reserved].

(28) Information regarding bidding material which shall include Instructions to Bidders, the Bid Form, the Contract Form, the General Provisions, any conditions, the specifications and drawings (see 1.1203).

(29) Where Standard Form 33 (Solicitation, Offer, and Award) (July 1966 edition) is not used, a provision covering parent company and employer identification number (see 1.114).

(30) If the contract is to be conditioned on the availability of funds, a clear statement of such condition (see 1.318).

(31) If the contract is to involve construction work (subject to the DavisBacon Act) at Cape Kennedy, Patrick Air Force Base, or Merritt Island Launch Area, the "Employee Compensation" clause and "Table of Employee Compensation".

(32) In accordance with 1.1208, a provision concerning the use of new material (except in the case of construction) and a provision concerning the use of former Government surplus property.

(33) The Certificate of Independent Price Determination as required by 1.115.

(34) Quality assurance requirements applicable to the procurement in accordance with Part 1, Subpart 50.

(35) [Reserved].

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