tic (e.g., a specific dimension) of a particular brand name product as set forth in a commercial catalog description, except where that exact characteristic is essential to the Government's need. The contracting officer must be prepared to justify such a requirement.

[32 FR 12559, Aug. 30, 1967, as amended at 40 FR 3999, Jan. 27, 1975]

§ 5A-1.307-5 Limitations on use of “brand name or equal” purchase descriptions. (a) General. The use of brand name or equal purchase descriptions in solicitations for bids or offers in the limited circumstances described in § 11.307-5 of this title is intended to promote maximum competition by encouraging the offering of products which are equal in all material respects to the brand name products referenced in such descriptions. The identification of items by the use of brand name or equal descriptions is not intended to indicate a preference for the brand name products referenced in the descriptions, but is to indicate the quality and characteristics of products that will meet the Government's needs (see (a) of the clause in § 1-1.307-6 of this title). Brand name or equal descriptions shall not be used as a means of procuring a particular brand name product under the guise of competitive procurement to the exclusion of other products which would meet the actual needs (see § 5A-1.307-1).

(b) Approval required. A “brand name or equal" purchase description shall not be used unless it has been approved by the Office of Standards and Quality Control, with the following exceptions:

(1) Purchase descriptions applicable to Forest Service items shall be approved in accordance with § 5A-72.1062.

(2) Purchase descriptions covering Veterans Administration items shall be approved by the Director, Supply Service, Veterans Administration, 810 Vermont Avenue NW., Washington, D.C. 20420.

(3) Purchase descriptions applicable to (i) public exigency procurements of nonstock items, or (ii) other procurements valued at $5,000 or less, may be

approved by the Director of the Procurement Division.

[32 FR 12559, Aug. 30, 1967, as amended at 40 FR 3999, Jan. 27, 1975)

§ 5A-1.307-6 Invitations for bids, "brand name or equal” descriptions.

The entries prescribed in § 1-1.307-6 shall be prominently inserted in the item listing after each item or component part of an end item to which a "brand name or equal" purchase description applies. In addition, because bidders frequently overlook the requirements of Clause 24 of GSA Form 1424, the following cautionary note shall be inserted in the item listing after each "brand name or equal" item (or component part), or at the bottom of each page listing several "brand name or equal" items, or in a manner which may be otherwise considered appropriate to direct the bidder's attention to this important clause of GSA Form 1424:

BIDDERS OFFERING OTHER THAN BRAND NAME ITEMS IDENTIFIED HEREIN SHOULD FURNISH WITH THEIR BIDS ADEQUATE INFORMATION TO ASSURE THAT DETERMINATION CAN BE MADE AS TO EQUALITY OF THE PRODUCT(S) OFFERED (SEE CLAUSE 24 OF GSA FORM 1424).

NOTE: If bid samples are requested for "brand name or equal" procurements, the above notice shall not be included in the solicitation.

[40 FR 4000, Jan. 27, 1975, as amended at 43 FR 23575, May 31, 1978]

§ 5A-1.307-7 Bid evaluation and award, "brand name or equal" descriptions.

A bid may not be rejected for failure of the offered product to match a characteristic of a referenced brand name product if that characteristic was not specified in the brand name or equal description. However, if it is clearly established that such unspecified characteristic is essential to the intended end use, the invitation is defective and no award may be made. In such cases the requirement should be readvertised using a purchase description which fully advises bidders of all the essential characteristics.

[32 FR 12559, Aug. 30, 1967, as amended at 44 FR 37921, June 29, 1979]

8 5A-1.311 Priorities, allocations, and allotments.

See Subpart 5A-72.7 for instructions regarding application of priority ratings to contracts for stock items.

[43 FR 1347, Jan. 9, 1978]

§ 5A-1.315 Use of liquidated damages provisions in procurement contracts.

§ 5A-1.315-2 Policy.

Under ordinary circumstances, proper administration of Article 11, Default, of the General Provisions, Standard Form 32, should produce acceptable deliveries and obviate the necessity of using liquidated damage clauses. The use of liquidated damage clauses in supply contracts should be avoided except when prompt delivery is of unusual importance and knowledge of facts in connection with a specific transaction indicates the necessity therefor. FPR 1-1.315 sets forth general policy guidance and contract provisions concerning use of liquidated damages.

[34 FR 436, Jan. 11, 1969]

§ 5A-1.316 Time of delivery or perform

ance.

[34 FR 436, Jan. 11, 1969]

§ 5A-1.316-2 General.

(a) Normally, time of delivery provisions in solicitations and resultant contracts, except multiple-award Federal Supply Schedules, shall be stated as "required" time of delivery (or shipment), expressed in specific periods from receipt by the contractor of a notice of award (or receipt of a delivery order under term contracts). In multiple-award Schedule solicitations, delivery times shall ordinarily be stated as "desired" time of delivery, and offerors shall be requested to indicate in spaces provided in the solicitation a definite number of days within which delivery will be made.

(b) Information shall be included in the contract file to justify the use of unusually short time of delivery requirements. This is particularly important where the time specified is so short that it may limit competition and possibly result in higher prices. Examples of circumstances which

could justify use of unusually short time of delivery requirements are (1) furniture is required in a short time to outfit quarters scheduled for occupancy on a specific early date, (2) construction material is required to meet predetermined job progress schedules, and (3) supplies are required at a port to meet scheduled ship sailings for overseas destinations. The contracting officer must be satisfied that the requisitioning office has justified such unusually short time of delivery.

(c) When a portion of the total requirement is needed at an early date, consideration should be given to requiring delivery of that portion by the earlier date and the balance later. Determination must be made as to whether the portion required early and the balance of the requirement should be included as separate items in the same invitation or whether the two portions should be procured under separate invitations.

(d) Delivery times for requirementstype contracts solicitations shall be carefully calculated to ensure that they reflect the most advantageous terms to the Government without imposing an unreasonable burden on potential contractors.

(e) When a particular solicitation contains a mixture of items which possess a potential for substantially different times for delivery, the different delivery periods should be set forth separately and items with similar delivery time potentials should be grouped under the appropriate delivery time frame shown in the solicitation.

(f) In negotiations for multipleawards, secure the best possible delivery time regardless of the "desired" delivery time(s) shown in the solicitation. For example, where some offers comply with the Government's desired delivery time but others cite delivery times which are substantially shorter, the former should be questioned and negotiated to bring them closer in line with the latter. Variable delivery time offers (e.g., 30-90 days) should be negotiated to keep the time span to a minimum in favor of the shorter end of the span. If the span applies to several items or several quantity breaks for one item, the items or item quanti

ty breaks should be segregated into smaller groups which can be assigned more specific delivery times.

[34 FR 436, Jan. 11, 1969, as amended at 39 FR 35796, Oct. 4, 1974]

§ 5A-1.316-3 Factors to be considered.

In addition to the factors set forth in § 1-1.316-3, the following shall be considered when determining time of delivery or performance: When lengthy testing is involved and the time required for completion of such tests cannot be estimated within reasonable limits, the clause set forth in § 5A-7.101-77 may be used in definite quantity or requirements type solicitations at the discretion of the contracting officer.

[37 FR 12959, June 30, 1972]

§ 5A-1.316-4 Terms.

(a) Definite quantity contracts. For definite quantity type contracts, other than small purchases of $2,500 or less, where the delivery period begins upon receipt of the notice of award by the contractor, one of the following methods, as appropriate, shall be used to provide evidence of the actual date the notice of award was received:

(1) Mail the notice of award using certified mail with return receipt requested (see § 1-1.316-4(e) of this title).

(2) Forward GSA Form 2497, Contractual Document Transmittal Receipt (see § 5A-16.950-2497 of this title), with the notice of award for completion and return by the contrac

tor.

(3) Deliver the notice of award to the contractor (for example, by Contracting Officer or QC representative) and obtain a receipt therefor.

(b) Requirements contracts for stock replenishment. Federal Supply Schedule and other term contracts-(1) Basic contract. To provide evidence of the actual date of receipt by the contractor of the notice of award on the contract, one of the methods in paragraph (a) of this section shall be used.

(2) Delivery orders placed under the term contract. Usually, separately documented evidence of the date of receipt by the contractor of delivery orders placed against term contracts is

not required. However, if it is believed that circumstances warrant obtaining a receipt, one of the methods in paragraph (a) of this section, as appropriate, may be utilized to provide the Government with the actual date of receipt of the delivery order.

[35 FR 9924, June 17, 1970]

§ 5A-1.316-5 Time of delivery clauses.

(a) Specific examples of time of delivery clauses are set forth below. When a different clause is needed, special language may be developed on a case-by-case basis. In paragraphs (b) and (c), of this section, "Delivery" and "Shipment" should be interchanged as appropriate. "Delivery" should be used for urgent requirements.

(b) Definite quantity contracts—(1) Contracts for stock items, other than exigencies. The language of the following clauses may be modified as long as unwanted accelerated shipments are prevented. For example, if inventory management activities indicate that one-third of the quantity is required in 30 calendar days, one-third in 90 days, and one-third in 150 days, it may be advantageous to establish three separate items for bidding purposes, each with a specified time of shipment. Language such as "Delivery is to be made as indicated in the schedule for each item" should be used. Where the delivery time is more than 45 calendar days, shipment shall not be made prior to 15 calendar days before the required time of delivery/shipment.

(i) Contracts with a single item of delivery.

(c) Requirements contracts.

(1) Stock replenishment contracts (only applicable to those contracts which do not include an Availability for Inspection and Testing and Shipment clause). When the required time for shipment is 45 calendar days or less after receipt of order, the time of shipment provision set forth in paragraph (c)(2), of this section, shall be used. When the required time for shipment specified is more than 45 calendar days after receipt of order, the following clause shall be used.

The time of delivery for each item means the time required after receipt of an order (i) to make delivery to destination in the case of delivered prices, or (ii) to place shipment in transit in the case of f.o.b., origin prices. Delivery is required to be made at the point(s) specified within days after receipt of order.

When it is appropriate to show different delivery times for different items or groups of items, the second paragraph of the above clause should be revised to read: "Delivery is required to be made at the point(s) specified within the number of days after receipt of order as indicated below." Appropriately captioned columns (completed by the solicitation preparer) should be inserted following the text of the clause.

(2) Multiple-award schedules.

TIME OF DELIVERY

The Government desires that delivery be made at destination within the number of days after receipt of order (ARO) as set forth below. Offerors are requested to insert in the "Time of Delivery (days ARO)" column in the Schedule of Items a definite number of days within which delivery will be made. If the offeror does not insert a delivery time, he shall be deemed to offer delivery in accordance with the Government's stated desired delivery time.

As an alternative, the Government's listing of desired delivery times may be shown in a column titled "Desired Delivery Time (Days ARO)" next to the column "Time of Delivery (days ARO)" in the Schedule of Items. In this instance, the above clause shall be appropriately modified.

(3) When the same desired delivery time applies to all items, the preceding clause shall be modified by substituting the following as the first sentence of the clause: "The Government desires that delivery be made at destination within days after receipt of order." Also, the blank spaces and headings shall be omitted.

(e) Contracts for services. Due to the wide number of variables existing in this area no specific clause is provided for service contracts.

[35 FR 9924, June 17, 1970, as amended at 39 FR 35796, Oct. 4, 1974; 41 FR 27037, July 1, 1976; 43 FR 23575, May 31, 1978]

§ 5A-1.317 Noncollusive bids and proposals.

The determinations required by § 51.317 and § 1-1.317, for transactions originating in the Procurement Operations Division, shall be made by the Assistant Commissioner for Procurement.

§ 5A-1.318 Disputes clause. [36 FR 6943, Apr. 13, 1971]

§ 5A-1.318-1 Contracting officer's decision under the Disputes clause.

(a) The adequacy of the contracting officer's decision under the Disputes clause, as required by § 1-1.318-1, and of the contents of any subsequent notice of appeal, as provided for by § 5-60.201, shall be properly ensured. Accordingly, the following paragraphs shall be set forth in all contracting officer's decisions subject to the Disputes clause:

This decision is made in accordance with the Disputes clause and shall be final and

conclusive as provided therein, unless a written Notice of Appeal addressed to the Administrator of General Services 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 should include a statement of the reason as why the decision is considered to be erroneous.

In the event you desire to file an appeal from this decision, there is enclosed for your convenience GSA Form 2465, Notice of Appeal, in triplicate, for completion and signature. All the items of information requested must be supplied. If sufficient space is not available on this form for each item, please attach a supplemental sheet or sheets. Also attached is an additional copy of the form which should be completed and retained for your files. The Notice of Appeal is to be signed by the appellant personally, if an individual, or, if not, by an authorized officer or duly authorized representative of the appellant organization and submitted in triplicate to the contracting officer.

The Notice of Appeal must be mailed or otherwise furnished to the contracting officer within 30 days from receipt of this decision or your appeal shall be considered untimely.

(b) Whenever a decision of the contracting officer is concerned with the termination of a contract and/or purchase order(s) for default, with a finding of inexcusability, GSA Form 2715, Decision of the Contracting Officer, as illustrated by § 5A-16.950-2715, shall be used in lieu of that set forth in § 5A-1.318-1(a), above.

(c) Notice of appeal action under the above circumstances may be effected by use of GSA Form 2465, Notice of Appeal, as illustrated by § 5A-16.9502465.

[36 FR 17576, Sept. 2, 1971, as amended at 37 FR 527, Jan. 13, 1972]

§ 5A-1.350 Advance notices of contract award.

Advance notice of award may be given by the contracting officer in writing, by telegraph, or orally. Notices shall include the identification of the invitation, description of the item quantity, price, and contract number assigned. Advance notices shall be followed as soon as possible by formal contract documents.