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(2) It the bidder proposes to moduly a product so as to make it conform to the roquirements of the Invitation for Bids, he shall (1) include in his bid a clear description of such proposed modifications and (11) clearly mark any descriptive material to show the proposed modifications.

(3) Modifications proposed after bid opening to make a product conform to & brand name product referenced in the invitation for Bids will not be considered.

(b) Where a component part of an end item is described in the invitation for bids by a “brand name or equal" purchase description and the contracting officer determines that application of the clause in (a) (2) of this § 1-1.307-6 to such component part would be impracticable, the requirements of (a) (1) and (2) of this $ 1-1.307-6 shall not apply with respect to such component part. In such cases, if the clause is included in the invitation for bids for other reasons, there also shall be included in the invitation a statement identifying either the component parts (described by "brand name or equal" descriptions) to which the clause applies or those to which it does not apply. This paragraph (b) also applies to accessories related to an end item where a "brand name or equal" purchase description of the accessories is a part of the description of an end item.

(c) When an invitation for bids contains “brand name or equal" purchase descriptions, bidders who offer brand name products referenced in such descriptions shall not be required to furnish bid samples of the referenced brand name products; however, invitations for bids may require the submission of bid samples in the case of bidders offering or equal" products. 129 FR 10104, July 24, 1964, as amended at 38 FR 24210, Sept. 6, 1973] § 1-1.307–7 Bid evaluation and award,

“brand name or equal" descriptions. (a) Bids offering products which differ from brand name products referenced in a “brand name or equal” purchase description shall be considered for award where the contracting officer determines in accordance with the terms of the clause in § 1-1.307-6(a) (2) that the offered products meet fully the salient characteristics requirements listed in the invitation. Bids shall not be rejected because of minor differences in design, construction, or features which do not affect the suitability of the products for their intended use.

(b) Award documents shall identify, or incorporate by reference an identification of, the specific products which the contractor is to furnish. Such identification shall include any brand name and/or make or model number, descriptive material, and any modifications of brand name products specified in the bid. Included in this requirement are those instances where (1) the description of the end item contains “brand name or equal" purchase descriptions or component parts or of accessories related to the end item and (2) the clause in § 1-1.307-6(a) (2) was applicable to such component parts or accessories (see § 1-1.307-6(b)). [29 FR 10104, July 24, 1964, as amended at 38 FR 24211, Sept. 6, 1973] § 1-1.307-8 Procedure for negotiated

procurements and small purchases (a) The policies and procedures prescribed in $$ 1-1.307-6 and 1-1.307–7 for formally advertised procurements shall be generally applicable to negotiated procurements.

(b) The clause set forth in § 1-1.307-6 (a) (2) may be adapted for use in negotiated procurements. If use of the clause is not practicable (as may be the case in exigency purchases), suppliers shall be suitably informed that proposals offering products different from the products referenced by brand name will be considered if the contracting officer determines that the offered products meet fully the salient characteristics requirements of the solicitation.

(c) In small purchases within openmarket limitations, such policies and procedures shall be applicable to the extent practicable. (29 FR 10104, July 24, 1964, as amended at 38 FR 24211, Sept. 6, 1973) &1-1.307-9 Inspection and acceptanco.

Inspection and acceptance of deliveries shall be made on the basis of the item described in the notice of award and/or contract. 8 1-1.308 (Reserved) § 1-1.309 (Reserved) § 1-1.310 (Reserved] 8 1-1.311 Priorities, allocations, and als

lotments. In the interest of maintaining a minimum priorities and allocations 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) 81-1.313 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.

8 1-1.314 Solicitations for informational

or planning purposes. It is the general policy of the Government to solicit bids, proposals, or quotations only where there is a definite intention to award a contract. However, iri 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 Uge of liquidated damages

provisions in procurement contracts. & 1-1.315-1 General.

This § 1-1.315 prescribes (a) policy which shall govern executive agencies in the use of liquidated damages provi. sions in contracts for supplies and seryices, including construction, entered into by formal advertising or by negotiation, and (b) a provision which shall be inserted in contracts for supplies and seryices, other than construction, when liquidated damages are stipulated. § 1-1.315-2 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 & case-by-case basis, since liquidated 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. Eficient 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 & 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 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(1) of Standard Form 32. General Provisions (Supply Contract), is redesignated as Article 11(g) and the following 18 inserted as Article 11(1):

(1) (1) In the event the Government exercises its right of termination as provided in

paragraph (a) above, the Contractor shall be llable 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.

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

(111) The Contractor shall not be llable for liquidated damages for delays due to causes which would relieve him from labuity 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 operative, an appropriate rate(s) of liquidated damages (determined pursuant to 81-1.315-2) must be stipulated in the invitation for bids. § 1-1.316 Time of delivery or perform

ance. § 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 con. tracting for personal property or nonpersonal services. This section does not, however, apply to contracts for construction. § 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 dificult of attainment tend to restrict competition, are incon sistent with small business policies, 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 evaluate ing 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). 8 1-1.3164 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 ac. ceptance 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 Government). The full period which the Government holds out as being available for contract

performance should not be curtailed to computed, the delivery date offered is later the prejudice of the contractor by delay than the delivery date required in the inviin giving notice of award. Accordingly,

tation, the bid will be considered nonre

sponsive and rejected. one of the provisions in (b) or (c) of this 8 1-1.316-4 shall be used in advertised (d) Where the delivery schedule is precurements and may be suitably modi- based on the date of the contract (see fied and used as appropriate in negoti (a) (2) and (c) of this & 1-1.316–4), the ated procurements.

contract, notice of award, acceptance of (b) Where the delivery schedule is proposal, or other contract document expressed in terms of specific calendar executed by the Government shall be dates (see (a) (1) of this f 1-1.316-4), mailed or otherwise furnished the coninvitations for bids shall include one tractor on the date shown thereon. of the following provisions:

(e) Where the delivery schedule is (1) The foregoing delivery requirements

båsed on date of receipt by the contracare based on the assumption that the Gov tor of notice of award (see (a) (3) of this ernment will make award by (procuring ac $ 1-1.316-4), or where it is expressed in tivity insert calendar date). Each delivery terms of specific calendar dates on the date in the delivery schedule set forth herein

assumption that notice of award will be will be extended by the number of calendar

received by a specified date (see (b) (2) days after the above date that the contract

of this § 1-1.316-4), the notice of award, 18 in fact awarded. Attention is directed to paragraph 8(d) of the Terms and Conditions

acceptance of proposal, or other conof the Invitation for Bids, which provides

tract document executed by the Governthat a written award malled or otherwise ment shall be sent by certified mall, refurnished to the successful bidder results turn receipt requested, or by any other in a binding contract. Therefore, in com appropriate method which will provide puting the available time for performance,

evidence of the date of receipt. the bidder should take into consideration

(f) When the required delivery schedthe time required for notice of award to arrive through the ordinary mails.

ule in the invitation for bids is based on (2) The foregoing delivery requirements

date of the contract (see (a) (2) of this are based on the assumption that the suc § 1-1.316-4), a bid which offers delivery cessful bidder will receive that notice of based on date of receipt by the conaward by (procuring activity insert calendar tractor of the contract or notice of award date). The Government will extend each (see (a) (3) of this g 1-1.316-4)delivery date in the delivery schedule set forth herein by the number of calendar days

(1) Shall be evaluated by adding the after the above date that the contractor re

maximum number of days normally receives notice of award, if the contractor

quired for delivery of the notice of award promptly acknowledges such receipt.

through the ordinary mails; and (c) Where the delivery schedule is

(2) 11 the delivery date offered by based on the date of contract (see (a) (2)

the bid (computed in accordance with of this g 1-1.316_4), the invitations for

(f) (1) of this 1-1.316-4) is later than bids shall include the following pro

the delivery date required in the invita

tion for bids, the bid shall be considered vision:

nonresponsive and rejected; but Attention is directed to paragraph 8(d) of

(3) If award is made under (f) (1) the Terms and Conditions of the Invitation

of this § 1-1.316-4, under the terms of for Bids, which provides that a written award malled or otherwise furnished to the suc

the contract the delivery date will be cessful bidder results in a binding contract. computed on the basis of the number of Any award hereunder, or a preliminary notice days after actual receipt by the conthereof, will be mailed or otherwise fur tractor of the notice of award as specinished to the bidder the day the award is fied in the bid. dated. Therefore, in computing the time available for performance, the bidder should § 1-1.316-5 Time of delivery clauses. take into consideration the time required for

(a) Examples of time of delivery the notice of award to arrive through the

clauses for invitations for bids are set ordinary malls. However, a bid offering de

forth below. They may be modified, or Uvery based on date of receipt by the con

other clauses may be used, to state partractor of the contract or notice of award (rather than contract date) will be evalu.

ticular delivery requirements or any speated by adding the maximum number of

cial procedures to be used in the evaluadays normally required for delivery of the tion, rejection, or award process as reaward through the ordinary malls, II, as sogards time of delivery. These clauses

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Bids offering delivery of each quantity within the applicable delivery period specifed above will be evaluated equally as regards time of delivery. Bids offering delivery of a quantity under such terms or conditions that dellvery will not clearly fall within the appllcable delivery period specified above will be considered nonresponsive and will be reJected. Where a bidder offers an earlier delivery schedule than that called for above, the Government reserves the right to award olther in accordance with the required schedule or in accordance with the schedule odered by the bidder. If the bidder offers no other delivery schedule, the delivery schedule stated above shall apply. Bidder's Proposed Delivery Schedule

(To Be Completed by Bidder) Item

Time No.

Quantity

Bids offering delivery of a quantity under such terms or conditions that dellvery 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 dellvery schedule 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 indicated spaces:

(1) "On (on or before) the date(s) specided 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 18 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 desired although not essential, but delivery by a specified later time is necessary to meet the Government's requirements:

TIME OF DELIVERY Delivery is desired by the Government in accordance with the following schedule:

• Contracting officer shall insert the appro. priate one of the following phrases, in eacb of the three indicated spaces:

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

(2) "Within the number of days stated below after 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.) 8 1-1.317 Noncollusivo bids and pro

posals. (a) In order to promote full and free competition for Government contracts, the following certification shall be included in all (1) invitations for bids and (2) requests for proposals or quotations, other than for small purchases made in accordance with Subpart 1-3.6 and other than requests for technical proposals in connection with two-step formal advertising, involving firm fixed

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