PROCUREMENT BY FORMAL ADVERTISING 2.407-5 Other Factors To Be Considered. The factors set forth below, among others, may be for consideration in evaluating bids for award: (i) foreseeable cost or delays to the Government resulting from differences in inspection, location of supplies, transportation, etc. If bids are on an FOB origin basis, transportation costs to the designated destination points shall be considered in determining the lowest cost to the Government. (ii) changes made or requested by the bidder in any of the provisions of the invitation for bids to the extent that any such change does not constitute ground for rejection of the bid under the provisions of 2.404. (iii) advantages or disadvantages to the Government that might result from making multiple awards. (See 2.201-1(b) (19).) (iv) Federal, State and local taxes (See Part 11). (v) origin of supplies, whether domestic or foreign, and, if foreign, the application of the Buy American Act or any other prohibition on foreign purchases (See Part 6). 2.407-6 Equal Low Bids. (a)(1) Where two or more low bids are equal in all respects, considering all factors except the priorities set forth in (2) below, award shall be made in accordance with the order of priorities therein. Where two or more low bids are equal in all respects, considering all factors including the priorities set forth in (2) below, award shall be made by a drawing by lot which shall be witnessed by at least three persons and which may be attended by the bidders or their representatives, subject to (3) below. (2) For the purposes of (1) above, preference shall be given in the following order of priority: (i) certified-eligible concerns (1.801) that are also small business concerns (1.701), (ii) other certified-eligible concerns, (iii) persistent labor surplus area concerns (1.801) that are also small business concerns (1.701), (iv) other persistent labor surplus area concerns, (v) substantial labor surplus area concerns (1.801) that are also small business concerns, (vi) other substantial labor surplus area concerns, (vii) other small business concerns. (3) If the application of the priorities in (2) above results in two or more bidders being eligible for award, the award shall be made to the concern that will make the most extensive use of small business subcontractors, rather than by drawing lots. If two or more bidders still remain eligible for award, the award shall be made by a drawing by lot limited to such bidders. (b) When award is to be made by drawing by lot and the information available shows that the product of a particular manufacturer has been offered by more than one bidder, a preliminary drawing by lot shall be made OPENING OF BIDS AND AWARD OF CONTRACT to ascertain which of the bidders offering the product of a particular manufacturer will be included in the final drawing to determine the award. (c) When an award is determined by drawing by lot, the names and addresses of the three witnesses and the person supervising the drawing shall be placed on all copies of the abstract of bids or otherwise recorded. (d) In each award where preference is to be given under this Part, the contracting officer shall, prior to award, obtain from such concern a written statement that it will perform, or cause to be performed, the contract in accordance with the circumstances justifying the priority. 2.407-7 Requirements in Lieu of Standard Form 1036. (a) Under General Regulation No. 51, Supplement No. 14, dated February 11, 1952, the General Accounting Office discontinued the requirement for preparation of Standard Form 1036, Statement and Certificate of Award, by agencies whose records are subject to site or comprehensive audit by that office. Accordingly, this form is not required in connection with NASA contracts, since NASA is subject to site audit by the General Accounting Office; and the supporting documents which would be used as a basis for preparation of Standard Form 1036 are retained in the procurement office and made available to the General Accounting Office for audit purposes. (b) While the use of Standard Form 1036 is not required, it is still necessary to record the method of purchase and the basis for award. The contracting officer shall maintain records that will show evidence of compliance with 2.103, and which will state that the accepted bid was the lowest bid received, or list all lower bids and set forth reasons for their rejection. These reasons shall be set forth in such detail as is necessary to justify the award. For the purpose of these records, the lowest bid received is considered to be that bid which is lowest after a consideration of price factors only. The cost of transportation to the destination indicated in the invitation for bids, any acceptable discount offered by a bidder, and if the invitation so specifies any other Government cost factors, shall be considered price factors in determining the lowest bidder for purposes of these records. In each case where an award is made after receipt of equal low bids, the record shall set forth the manner in which the tie was broken. Where an award involves a mistake in bid and the matter has been resolved by administrative action, a copy of the bidder's verification in the case of an apparent mistake, or the written administrative determination concerned, shall be retained in the contract file. Where an award involves a mistake in bid on which the Comptroller General has rendered a decision, the file shall contain a citation by number and date of the decision and a copy thereof shall be retained in the contract file. 2.407-8 Protests Against Award. (a) General. (1) Contracting officers shall consider all protests or objections to the award of a contract, whether received before or after award. If the protest is oral and the matter cannot otherwise be resolved, written confirmation of the protest shall be requested. The protester shall be notified in writing of the final decision on the written protest. (2) Every effort shall be made to resolve protests at the installation. It is the responsibility of the contracting officer to decide whether a protest PROCUREMENT BY FORMAL ADVERTISING has a valid basis and to take appropriate action when possible without referral to NASA Headquarters. Such action may be taken only with the concurrence of local counsel and shall be followed by a written explanation to NASA Headquarters accompanied by a copy of any pertinent correspondence. However, in the following cases written protests received by the contracting officer should be referred to NASA Headquarters: (i) the protesting party requests referral to higher authority; (ii) the protest is known to have been lodged directly with the Comptroller General, a member of Congress, the Small Business Administration, or NASA Headquarters; (iii) the contracting officer entertains some doubt as to proper action regarding the protest or believes it to be in the best interest of the Government that the protest be considered by NASA Headquarters or the Comptroller General. (3) In referring a protest to NASA Headquarters, a completely documented case shall be submitted to the Procurement Office, NASA Headquarters (Code KDA-2) including the following: (i) the letter or other document which initiated the protest, together with all supporting evidence submitted by the person making the protest; (ii) relevant letters or other written statements, received from other persons or bidders affected by or involved in the protest, that set forth the facts with respect to their position in the matter, together with any additional supporting evidence; (iii) a copy of the bid of the protesting bidder and a copy of the bid of the bidder to whom award has been made or who is being considered for award, if relevant to the protest; (iv) a copy of the invitation for bids, including, where practicable, pertinent specifications, if relevant to the protest; (v) a copy of the abstract of bids; (vi) any other documents which are relevant to the protest; and (4) Where protests are made directly to NASA Headquarters or where NASA Headquarters receives notice of protests made directly to the Comptroller General, a member of Congress, or the Small Business Administration, the contracting officer shall be requested to furnish information. This will usually require submittal of a completely documented case as prescribed in paragraph (3) above. (5) Protests received by NASA Headquarters, in accordance with paragraphs (a) (2) and (a) (4) above, will be acted upon by the Procurement Office, NASA Headquarters. Where substantial doubt exists as to the validity of a protest, the views of the Comptroller General will be obtained. OPENING OF BIDS AND AWARD OF CONTRACT (6) Where a protest affects another bidder, a contractor, or any other party having a legitimate interest, the contracting officer normally should give prompt notice of the protest to such parties in order that they may take appropriate action on their own behalf. The extent of information to be furnished the affected parties in any particular case will be governed by such matters as legal considerations, the interest of the Government, equitable consideration for the interests of affected parties, and mitigation of losses or other injuries to any and all parties concerned. Affected parties shall be advised that such a notice of protest in no way relieves them of any obligations, under a contract or otherwise, but is intended primarily to afford them a fair opportunity to be heard by, and to present evidence for the consideration of, the agency which will render a decision in the case. (b) Protests Before Award. If award has not been made, the contracting officer may require that written confirmation of an oral protest be submitted by a specified time and inform the protester that award will be withheld until the specified time. If the written protest is not received by the time specified, the oral protest may be disregarded and award may be made in the normal manner unless the contracting officer, upon investigation, finds that remedial action is required, in which event such action shall be taken. (1) In appropriate cases, notice of a protest will be given to bidders affected thereby. For example, when a protest against the making of an award is received and the contracting officer determines to withhold the award pending disposition of the protest, each bidder to whom award is proposed and each bidder whose bid might become eligible for award should be informed of the protest and requested, before expiration of the time for acceptance of their bids, to extend the time for acceptance (with consent of sureties, if any) in order to avoid the need for readvertisement. In the event of failure to obtain such extension of bids, then consideration should be given to proceeding with award under (b)(3) of this paragraph. (2) Where a protest has been lodged with NASA, the views of the Comptroller General regarding the protest may be obtained before award whenever such action is considered to be desirable. Where it is known that a protest against the making of an award has been lodged directly with the Comptroller General, a determination to make award need not be withheld pending final disposition by the Comptroller General of a protest, but a notice of intent to make award in such circumstances shall be furnished the Comptroller General, and formal or informal advice should be obtained concerning the current status of the case prior to making the award. (3) Where a written protest against the making of an award is received, or if it is known that a protest has been made to the Comptroller General, a member of Congress, the Small Business Administration, or NASA Headquarters, award shall not be made until the matter is resolved, unless the contracting officer determines that: (i) the items to be procured are urgently required; (ii) delivery or performance will be unduly delayed by failure to make award promptly; or (iii) a prompt award will otherwise be advantageous to the Government. PROCUREMENT BY FORMAL ADVERTISING If award is made under (i), (ii), or (iii) above, the contracting officer shall document the file to explain the need for an immediate award, and shall give written notice of the decision to proceed with the award to the protester and, as appropriate, to others concerned. (4) The determination required by (b)(3) above shall be referred to the Procurement Office, NASA Headquarters for approval prior to award if an unresolved protest against such award has been, or is expected to be, referred to NASA Headquarters in accordance with paragraph (a) (2) above, or if information on a protest is being prepared by the contracting office at the request of NASA Headquarters in accordance with paragraph (a)(4) above. (c) Protests After Award. The general instructions in paragraph (a) above are applicable to protests received after award. 2.408 Information to Bidders. 2.408-1 Unclassified Awards. In the case of all unclassified formally advertised contracts, the procurement office shall as a minimum (subject to any restrictions in Part 1, Subpart 6), (i) notify unsuccessful bidders promptly of the fact that their bids were not accepted, and (ii) extend the appreciation of the procurement office for the interest the unsuccessful bidder has shown in submitting a bid. Notification to unsuccessful bidders may be either orally or in writing through the use of a form postal card or other appropriate means. Should additional information be requested, the procurement office shall provide the unsuccessful bidders with the name and address of the successful bidder, together with the contract price, and should also inform the inquirers as to the location where a copy of the abstract of bids is available for inspection. However, when multiple awards have been made and furnishing the names, addresses, and contract prices of the successful bidders would require so large an amount of work as to interfere with normal operations of the procurement office, only information concerning location of the abstract of bids need be given. In addition, when an inquiry is made by an unsuccessful bidder who is lower in price than the successful bidder, sufficient information shall be furnished in the reply to the unsuccessful bidder to fully explain the basis for award. Where request is received concerning an unclassified invitation for bids from an inquirer who is neither a bidder nor a representative of a bidder, the procurement office should make every effort to furnish the names of successful bidders and, if requested, the prices at which awards were made. However, where such requests require so large amount of work as to interfere with the normal operations of the procurement office, the inquirer will be advised where a copy of the abstract of bids may be seen 2.408-2 Classified Awards. In the case of all classified formally advertised contracts, the procurement office shall (i) notify unsuccessful bidders promptly of the fact that their bids were not accepted, and (ii) extend the appreciation of the procurement office for the interest the unsuccessful bidder has shown in submitting a bid. Information with respect to the name of the successful bidder and the contract price will be furnished only to unsuccessful bidders or their properly cleared representatives and then only upon request. No information regarding a classified award may be furnished by telephone. 2.409 Synopses of Contract Awards. See 1.1005–1. |