that they leave nothing for the bidder to describe.

(c) Among other things, FPR 12.202-5(d) requires *** the invitation for bids shall clearly state what descriptive literature is to be furnished, the purpose for which it is required, the extent to which it will be considered in the evaluation of bids, and the rules which will apply if a bidder fails to furnish it before bid opening * *." The asterisked note in FPR 1-2.202-5(d)(1) lists categories of general subjects which may be appropriate for inclusion in the Requirement for Descriptive Literature clause. A mere repetition of these subjects in the clause is not sufficient to establish a common basis for evaluation of bids.

(d) An invitation for bids must contain sufficient particularity to put bidders on notice (1) as to why the descriptive data is necessary, and (2) as to how much detail the bidder must furnish in his descriptive data for his bid to be considered responsive.

§ 12-2.203-1 Mailing or delivery to prospective bidders.

(a) Copies of invitations may be furnished for informational purposes to nongovernmental organizations such as trade associations and bidding informational services, provided they lend some assistance in advertising the requirements. The extent to which supporting papers (drawings, specifications and general provisions) are furnished will depend on how the organizations intend to use the material. If they merely prepare a synopsis of bid solicitations for distribution to their members or subscribers, the invitation itself should suffice. If, however, they provide a reading room service (such as various trade associations do for construction projects), a complete set of all papers should be furnished without cost.

(b) In connection with invitations for construction, where the cost of reproduction and distribution of plans or drawings is a substantial cost item, the extent of distribution of bidding papers may be controlled by charging prospective contractors and subcontractors a flat, nonrefundable deposit fee. This method is preferred over the use of a refundable deposit system.

When the plan fee method is used, arrangements should be made for plans and other bidding papers to be readily available for free inspection at the originating procurement office and other appropriate procurement offices, trade association reading rooms, and similar locations. The nonrefundable plan fee should be $5, $10, or $15 per set, or more as may be appropriate. The value of the project and the cost of reproduction and distribution of the plan should be considered in determining the fee to be charged. No additional charge should be made for plans which are revised or added after the invitation is issued, or for additional plans required by the successful bidder. Plan fees collected are for deposit in the "Miscellaneous Receipts" account.

§ 12-2.203-3 Publicity in newspapers and trade journals.

(a) Section 3703 of title 44 of the United States Code provides that “All advertisements, notices, proposals for contracts, and all forms of advertising required by law for the several departments of the Government may be paid for at a price not to exceed the commercial rates charged to private individuals, with the usual discounts." Section 3701 of the same title prohibits advertising in any newspaper published and printed in the District of Columbia unless the supplies or labor to be secured are to be furnished or performed in the District of Columbia or in the adjoining counties in Maryland and Virginia.

(b) The head of the agency may authorize the publication of advertisements, notices, or proposals relating to the procurement and disposal of real and personal property and services. This authority may be delegated, but without power to further delegate, to subordinate officials.

(c) Standard Forms 1143 and 1143a shall be used to place orders for paid advertising.

812-2.205-5 Release of bidders mailing lists.

When it is necessary to dispatch identical information by means of electrical transmission to prospective

bidders or offerors, the electrically transmitted message, when released for communications handling, shall be marked "Book Message-Transmit a Single Address Message" to preclude prospective bidders or offerors from knowing the names of others solicited.

Subpart 12-2.4-Opening of Bids and Award of Contract

§ 12-2.402-50 Classified bids.

The opening of classified bids shall not be accessible to the general public. Such opening may be witnessed and the results recorded by those bidder representatives who have been previously cleared from a security standpoint and who represent bidders which were invited to bid on the procurement. Bids shall be made available only to those persons authorized to attend the opening of bids. The procedures set forth in FPR 1-2.402 for safeguarding unclassified bids are also applicable to classified bids. Classified bids shall be stored in GSA-approved security containers. No public record shall be made of bids or bid prices received on classified invitations for bids.

§ 12-2.407-8 Protests against award.

When a protest is received after award of contract, the contracting officer shall obtain the views and advice of legal counsel and the head of the procuring activity.

§ 12-2.408 Information to bidders.

Unsuccessful bidders shall be given a written notification of award. It shall contain the name of the successful contractor(s), and the unit price(s) or the total amount of the contract, whichever is appropriate. However, when numerous unit prices apply, thereby creating an extensive workload in furnishing this information, or where the total amount of the contract would not be meaningful, price information may be omitted. In the latter instance, the location where the abstract of bids is available for inspection shall be stated.

Subpart 12-2.5-Two-Step Formal Advertising

§ 12-2.503-1 Step one.

Although the Government's delivery or performance requirements are not evaluation factors under Step One, information about those requirements may be of assistance to potential bidders in determining whether or not to submit a technical proposal. Accordingly, a request for technical proposals may contain a statement indicating what the Government's probable contract delivery or performance requirements will be. The statement shall also advise that such information is not binding on the Government and that the Government's actual delivery or performance requirements will be contained in the invitation for bid issued under Step Two.

§ 12-2.503-50 Determination of size status.

Where a two-step procurement is set aside for small business firms, the controlling point in time for determining the size status of a concern is, as prescribed in FPR 1.1.703-1(b), the date of award of contract. The fact that the size status of an offeror submitting a proposal in good faith changed from a "small" to a "large" business during the interval between Step One and Step Two is not sufficient to justify an exception to the rule that size status is for determination at time of award.

PART 12-3-PROCUREMENT BY NEGOTIATION

Subpart 12-3.2-Circumstances Permitting Negotiation

Sec.

12-3.200 Scope of subpart.

12-3.201 National emergency. 12-3.202 Public exigency.

12-3.203 Purchases not in excess of $10,000.

12-3.204 Personal and professional services.

12-3.205 Services of educational institutions.

12-3.206 Purchases outside the United States.

12-3.207 Medicines or medical supplies.

Sec.

12-3.208 Property purchased for author

ized resale.

12-3.209 Subsistence supplies.

12-3.210 Impracticable to secure competition by formal advertising.

12-3.211 Experimental, development, or research work.

12-3.212 Purchases not to be publicly disclosed.

12-3.213 Technical equipment requiring standardization and interchangeability of parts.

12-3.214 Negotiation after advertising. 12-3.215 Otherwise authorized by law. 12-3.250 Technical or specialized supplies requiring substantial initial investment or extended period of preparation for manufacture.

12-3.251 Purchases in the interest of national defense or industrial mobilization. 12-3.252 Negotiation of construction contracts for work to be performed in the United States, its possessions and Puerto Rico.

12-3.5007 Amendment of request for proposals-prior to closing date.

12-3.5008 Treatment of procurement information.

12-3.5008-1 Restrictions on disclosure and

use of data in proposals.

12-3.5008-2 Disclosure of information during the pre-award or preacceptance period.

12-3.5008-3 Pre-award notice of unacceptable offers.

12-3.5009 Notice of award technique.

12-3.5010 Protests against award. 12-3.5011 Unsolicited contract proposals.

AUTHORITY: Sec. 205(c), 63 Stat. 389; 40 U.S.C. 486(c), 10 U.S.C. 2301-2314.

SOURCE: 42 FR 45199, Sept. 8, 1977, unless otherwise noted.

Subpart 12-3.2-Circumstances Permitting Negotiation

§ 12-3.200 Scope of subpart.

(a) This subpart is applicable only to the Coast Guard.

(b) Procurements by the Coast Guard may be effected by negotiation under any one of the 17 exceptions contained in 10 U.S.C. 2304(a). Except as modified in this Subpart 12-3.2, the regulations set out in FPR Subpart 13.2 shall apply to Coast Guard negotiated procurement.

§ 12-3.201 National emergency.

Section 2304(a)(1) of 10 U.S.C. shall be cited as the authority for Coast Guard procurement under this section.

§ 12-3.202 Public exigency.

Section 2304(a)(2) of 10 U.S.C. shall be cited as the authority for Coast Guard procurement under this section.

§ 12-3.203 Purchases not in excess of $10,000.

Section 2304(a)(3) of 10 U.S.C. shall be cited as the authority for Coast Guard procurement under this section.

§ 12-3.204 Personal and professional services.

Section 2304(a)(4) of 10 U.S.C. shall be cited as the authority for Coast Guard procurement under this section.

§ 12-3.205 Services of educational institutions.

Section 2304(a)(5) of 10 U.S.C. shall be cited as the authority for Coast Guard procurement under this section.

§ 12-3.206 Purchases outside the United States.

(a) Authority. Section 2304(a)(6) of 10 U.S.C. shall be cited as the authority for Coast Guard procurement under this section "for property or services to be procured and used outside the United States, and its territories, possessions and Puerto Rico."

(b) Application. This authority shall be used only for the procurement of: (1) Supplies to be (i) shipped from, (ii) delivered, and (iii) used, or

(2) Services to be performed outside of the United States, its possessions and Puerto Rico, irrespective of the place of negotiation or execution of the contract.

§ 12-3.207 Medicines or medical supplies.

Section 2304(a)(7) of 10 U.S.C. shall be cited as the authority for Coast Guard procurement under this section.

§ 12-3.208 Property purchased for authorized resale.

Section 2304(a)(8) of 10 U.S.C. shall be cited as authority for Coast Guard procurement under this section.

§ 12-3.209 Subsistence supplies.

Section 2304(a)(9) of 10 U.S.C. shall be cited as authority for Coast Guard procurement under this section.

§ 12-3.210 Impracticable to secure competition by formal advertising.

Section 2304(a)(10) of 10 U.S.C. shall be cited as authority for Coast Guard procurement under this section.

§ 12-3.211 Experimental, development, or research work.

(a) Authority. Section 2304(a)(11) of 10 U.S.C. shall be cited as authority for Coast Guard procurement under this section.

(b) Limitations. In addition to the limitations set forth in FPR 13.211(b), determinations and findings for contracts negotiated under this section requiring expenditures of not more than $100,000, shall be made by the Comptroller, Coast Guard Headquarters (Commandant (G-F)); those in excess of $100,000 shall be made by the Commandant of the Coast Guard.

(c) Reporting requirement. (1) Reports required by section 2304(e), of 10 U.S.C. to be made to the Congress on May 19 and November 19 of each year shall be made by Chief, Procurement Division (Commandant (G-FCP)), to the Department of Transportation, Office of Installations and Logistics, TAD-60, by May 1 and November 1 of

each year of the purchases and contracts made under this § 12-3.211 since the date of last report.

(2) Reports shall contain the following information:

(i) Name of contractor;

(ii) Dollar amount of contract (including amendments); and

(iii) Brief description of the work required to be performed under the contract (when necessary, because of the national security, the word "Classified" may be used in lieu of the description.)

§ 12-3.212 Purchases not to be publicly disclosed.

(a) Authority. Section 2304(a)(12) of 10 U.S.C. shall be cited as the authority for Coast Guard procurement under this section.

(b) Limitations. Determinations and findings for negotiation under this section shall be made by the Commandant.

§ 12-3.213 Technical equipment requiring standardization and interchangeability of parts.

(a) Authority. Section 2304(a)(13) of 10 U.S.C. shall be cited as authority for Coast Guard procurement under this section.

(b) Limitations. Determinations and findings for negotiation under this section shall be made by the Commandant.

§ 12-3.214 Negotiation after advertising.

(a) Authority. Section 2304(a)(15) of 10 U.S.C. shall be cited as authority for Coast Guard procurement under this section. Determinations and findings for negotiation under this section shall be made by the Commandant.

(b) Limitations. (1) In addition, to the limitations imposed in FPR 13.214(b), the negotiated price must be less than the lowest rejected bid of any responsible bidder, as determined by the Commandant.

(2) Determinations and findings for negotiation under this section shall be made by the Commandant.

§ 12-3.215 Otherwise authorized by law. (a) Authority. Section 2304(a)(17) of 10 U.S.C. shall be cited as authority

for Coast Guard procurement under this section.

(b) Application. The contract shall cite as authority to negotiate, in addition to 10 U.S.C. 2304(a)(17), the applicable statute or United States Code reference.

§ 12-3.250 Technical or specialized supplies requiring substantial initial investment or extended period of preparation for manufacture.

(a) Authority. Pursuant to 10 U.S.C. 2304(a)(14), purchases and contracts may be negotiated if "for technical or special property that he [the Commandant] determines to require a substantial initial investment or an extended period of preparation for manufacture and for which he determines that formal advertising would be likely to result in additional cost to the Government by reason of duplication of investment or would result in duplication of necessary preparation which would unduly delay the procurement of the property."

(b) Application. The authority of this section may be used for the procurement of technical or specialized supplies; for example, aircraft, radar, guided missiles, rockets, and similar items of equipment; major components of any of the foregoing, and any supplies of a technical or specialized nature which may be necessary for the use or operation of any of the foregoing. Such procurement generally involves:

(1) High starting costs which have already been paid for by the Government or by the supplier;

(2) Preliminary engineering and development work that would not be useful to or usable by any other supplier;

(3) Elaborate special tooling already acquired;

(4) Substantial time and effort already expended in developing a prototype or initial production model; and

(5) Important design changes which will continue to be developed by the supplier.

The authority cited in this section will, in general, be used in situations where it is preferable to place a production contract with the supplier